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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
)
AMERICAN FAMILY ASSOCIATION ) File No. EB-02-IH-0819
) NAL/Acct. No. 200432080203
) FRN 0005025911
Licensee of Station KBMP(FM), ) Facility ID No. 91037
Enterprise, Kansas )
FORFEITURE ORDER
Adopted: November 4, 2004 Released: November
5, 2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of $10,000 to American
Family Association (``AFA''), licensee of non-commercial
educational radio Station KBMP(FM), Enterprise, Kansas. AFA
violated the main studio rule by willfully and repeatedly
failing to meet the location requirements set forth in
section 73.1125(a) of the Commission's rules, and by
willfully and repeatedly failing to maintain a meaningful
management and staff presence at its main studio.1 AFA also
willfully failed to comply fully with a Bureau communication
that directed it to produce certain information concerning
the main studio of Station KBMP(FM).
II. BACKGROUND
2. The Enforcement Bureau issued a Notice of Apparent
Liability for Forfeiture (``NAL'') to AFA on July 28, 2004.2
As discussed more fully in the NAL, AFA placed Station
KBMP(FM) into operation on March 6, 2002 with a main studio
co-located with that of co-owned Station KCFN(FM), Wichita,
Kansas, prior to Media Bureau action on a main studio rule
waiver request to allow such co-location. AFA subsequently
requested Media Bureau action on the waiver request ``before
we are hit with forfeitures'' due to the lack of a local
main studio for Station KBMP(FM).3 By letter dated October
31, 2002, the Audio Division of the Media Bureau granted
AFA's waiver request, without prejudice to whatever
enforcement action might be taken with respect to AFA's
admitted violation of the Commission's main studio rule.4
The Media Bureau referred the matter to the Enforcement
Bureau for possible enforcement action. On November 13,
2003, the Investigations and Hearings Division of the
Commission's Enforcement Bureau sent a letter of inquiry to
AFA, notifying AFA that the Bureau ``is investigating
allegations that [AFA] . . . violated the Commission's
broadcast main studio rule'' and directing it to provide
nine categories of information and copies of all documents
relevant to AFA's responses.5 AFA responded with a letter
dated November 21, 2003 that only addressed two categories
of information and provided only one responsive document.6
3. The NAL proposed a forfeiture in the base amount of
$7,000 for AFA's apparent violation of Section 73.1125.
With respect to the Bureau's letter of inquiry to AFA, the
Bureau found that AFA had failed to provide seven out of
nine categories of information identified by the Bureau and
had not offered any explanation for its incomplete response.
The Bureau accordingly proposed a forfeiture in the amount
of $3,000 for this violation, reduced from the base amount
of $4,000 because AFA had provided a partial response.7 AFA
responded to the NAL on August 25, 2004.8
III. DISCUSSION
A. AFA Willfully and Repeatedly Failed to Meet the
Location and Staffing Requirements of the Main Studio
Rule.
4. By AFA's own admission, the main studio for Station
KBMP(FM) did not meet the location or staffing requirements
for a broadcast station's main studio under section
73.1125(a) from March 6, 2002, when the station commenced
operation, until October 31, 2002, when AFA received a
waiver of the main studio rule. The record shows that this
was a knowing violation by AFA, as AFA noted in its request
for expedited processing that it sought action by the
Commission's Media Bureau ``before we are hit with
forfeitures.''9 In this regard, we note that, in 2002, AFA
was assessed a forfeiture in the amount of $5,000 for
operating Station KBKC-FM, Moberly, Missouri, without a main
studio.10 As in this case, AFA put that station on the air
after filing a main studio waiver request, but had not
received a grant of that request when it commenced operation
of the station without a local main studio. A field
inspection by the Enforcement Bureau revealed the lack of a
local main studio.
5. In its Response, AFA argues that in this case it
brought the violation at Station KBMP(FM) to the
Commission's attention. We recognize that a forfeiture may
be reduced from the base amount under our forfeiture
guidelines if there was a voluntary disclosure of a
violation.11 However, in this case there are countervailing
circumstances. AFA is extremely familiar with the
requirements of the main studio rule, having obtained
waivers of the rule in approximately 60 cases before this
one.12 In this case, AFA committed an intentional violation
of the rule for a period of six months, not long after being
assessed a forfeiture for a similar violation at another AFA
station. Had AFA not disclosed the violation, these
circumstances would warrant an upward adjustment from the
base forfeiture amount of $7,000.13 Because AFA did
voluntarily disclose the violation, we did not make an
upward adjustment. Under the totality of the circumstances
here, reduction or elimination of the proposed forfeiture is
not appropriate.
6. AFA argues that the forfeiture should be cancelled
because it was not tardy in applying for a waiver and it
vigorously pursued the waiver request. We disagree. As
explained above, AFA operated without a local main studio
prior to obtaining Commission authority to do so. Diligence
in seeking such authority does not justify reduction or
cancellation of the forefeiture in this case.14
7. In its Response, AFA contends that the Media
Bureau's simultaneous grant of AFA's waiver request and its
license application for Station KBMP(FM) compels a finding
that ``[a]t no time did KBMP operate as a licensed station
without complying with the Main Studio Rule.''15 AFA also
argues that its construction of the station has served the
public interest, particularly the interests of the community
of Enterprise, Kansas. However, the grant of the waiver
request and license application does not excuse AFA's
preceding rule violation. Indeed, the Media Bureau
explicitly stated that its action was ``without prejudice to
whatever action, if any, the Commission deems appropriate in
light of AFA's apparent violation of the Commission's main
studio requirements.''16 Likewise, every permittee that
constructs a station and obtains a license for that station
must first be found to serve the public interest, as AFA was
in this case. However, such a finding does not excuse the
permittee from complying with any of the Commission's rules,
which is why the Media Bureau specifically noted that its
action was without prejudice to a subsequent enforcement
action.
B. AFA Willfully Failed to Respond in Full to a Bureau
Order.
8. Section 403 of the Act authorizes the Commission to
institute on its own motion any inquiry into, inter alia,
any matter relating to the enforcement of the Act or the
Commission's rules.17 Section 308(b) provides that the
Commission ``may require from an applicant or licensee
further written statements of fact during the license term.
. . .''18 Pursuant to that and other authority,19 the
Bureau ordered AFA to provide certain information. AFA did
not do so. Out of nine categories of information and
documents the Enforcement Bureau's letter of inquiry dated
November 13, 2003 directed AFA to provide, Mr. Vaughn
responded to two, offering no explanation for not responding
to the other categories.20
9. AFA admits its ``failure to provide a satisfactory
response,'' but argues that this failure ``was not willful
but confused.''21 AFA argues that ``it is sometimes
confusing to the public to understand the status of a matter
in one department that was previously resolved by a
different Bureau.''22 AFA's argument lacks merit. As
noted above, the Media Bureau explicitly noted that its
actions were without prejudice to further action by the
Commission ``in light of AFA's apparent violation of the
Commission's main studio requirements.''23 Moreover, the
first sentence of the Enforcement Bureau letter of inquiry
that AFA largely ignored stated that the Bureau ``is
investigating allegations that [AFA] . . . violated the
Commission's broadcast main studio rule.''24 Both of these
documents placed AFA on notice that its actions were subject
to investigation and possible enforcement action. In
response, AFA unilaterally chose to ignore the Enforcement
Bureau's inquiry in seven of the nine categories of
information sought.25 Thus, we find no basis for reducing
or eliminating the proposed $3,000 forfeiture for failing to
comply with a Bureau order.
IV. ORDERING CLAUSES
10. ACCORDINGLY, IT IS ORDERED THAT, pursuant to
section 503(b) of the Communications Act of 1934, as
amended, 47 U.S.C. § 503(b), and section 1.80 of the
Commission's rules, 47 C.F.R. § 1.80, American Family
Association IS LIABLE FOR A MONETARY FORFEITURE in the
amount of $10,000 for willfully and repeatedly violating the
Commission's main studio rule and for willfully failing to
comply with a Bureau order.
11. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the
Federal Communications Commission. The payment must include
the NAL/Acct. No. and FRN No. referenced above. Payment by
check or money order may be mailed to Forfeiture Collection
Section, Finance Branch, Federal Communications Commission,
P.O. Box 73482, Chicago, Illinois 60673-7482. Payment by
overnight mail may be sent to Bank One/LB 73482, 525 West
Monroe, 8th Floor Mailroom, Chicago, Illinois 60661.
Payment by wire transfer may be made to ABA Number
071000013, receiving bank Bank One, and account number
1165259.
12. Requests for payment of the full amount of the
forfeiture under an installment plan should be sent to:
Chief, Credit and Management Center, 445 12th Street, S.W.,
Washington, D.C. 20554.26
13. IT IS FURTHER ORDERED that a copy of this Order
shall be sent, by Certified Mail/Return Receipt Requested,
to Patrick J. Vaughn, General Counsel, American Family
Association, P.O. Drawer 2440, Tupelo, MS 38803.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 See 47 C.F.R. § 73.1125(a); see also Main Studio and
Program Origination Rules, 2 FCC Rcd 3215 (1987), clarified
3 FCC Rcd 5024 (1988); Jones Eastern of Outer Banks, Inc.,
6 FCC Rcd 3615 (1991) (``Jones Eastern I''), clarified 7
FCC Rcd 6800 (1992) (``Jones Eastern II'').
2 American Family Association, Notice of Apparent
Liability for Forfeiture, 19 FCC Rcd 14072 (EB 2004).
3 Letter from Patrick J. Vaughn, General Counsel, AFA, to
Marlene H. Dortch, Secretary of the Commission, dated
September 5, 2002.
4 Letter from Peter H. Doyle, Chief, Audio Division of
Commission's Media Bureau, to Patrick J. Vaughn, dated
October 31, 2002.
5 Letter from William D. Freedman, Deputy Chief,
Investigations and Hearings Division, Enforcement Bureau,
to Mr. Vaughn, dated November 13, 2003.
6 NAL, 19 FCC Rcd at 14074, ¶ 6.
7 Id., 19 FCC Rcd at 14077, ¶ 15.
8 Letter from Patrick J. Vaughn to William H. Davenport,
Chief, Investigations and Hearings Division, Enforcement
Bureau, dated August 24, 2004 (``Response'').
9 Letter from Patrick J. Vaughn to Marlene Dortch, dated
September 5, 2002.
10 See American Family Association, Forfeiture Order, 17
FCC Rcd 18,135 (EB 2002), recon. denied 18 FCC Rcd 2413 (EB
2003).
11 See 47 C.F.R. § 1.80(b)(4), Note at Section II, Downward
Adjustment Criteria, #2 (good faith or voluntary
disclosure).
12 See American Family Association, 18 FCC Rcd at 2414 ¶ 4.
13 See 47 C.F.R. § 1.80(b)(4), Note at Section II, Upward
Adjustment Criteria, ## 3 (intentional violation), 5 (prior
violations of any FCC requirements), and 7 (repeated or
continuous violation).
14 See Liability of KXOJ, Inc., Memorandum Opinion & Order
and Forfeiture Order, 15 FCC Rcd 21812 n. 1 (MMB 1999)
(``[L]icensees are not excused from their duty to comply
with the main studio rule during the pendency of rule
waiver requests''). In addition, the rule itself states
very clearly that prior approval is needed to locate a
studio outside any of the locations specified in the rule
and that the filing of a waiver request does not imply
approval of that request. See 47 C.F.R. § 73.1125(d)(2).
15 Response at 3.
16 Letter, n. 4 supra, at 3. We further note that Station
KBMP's operation pursuant to program test authority has no
effect on AFA's obligations under the Commission's main
studio rule. The Commission's rule on program test
operation specifically states that ``[a]ll operation under
program test authority shall be in strict compliance with
the rules governing broadcast stations and in strict
accordance with representations made in the application for
license pursuant to which the tests were authorized.'' 47
C.F.R. § 73.1620(d). In this regard, AFA notes that its
license application erroneously certified that the station
was operating in compliance with the main studio rule,
rather than noting that it had requested a waiver of that
rule. Response at 2-3. The Bureau was aware of this
error, but did not cite the error in the NAL. The
erroneous certification can only be viewed as inadvertent
in light of AFA's prior filings with the Commission
concerning Station KBMP(FM).
17 See 47 U.S.C. § 403.
18 47 U.S.C. § 308(b). See also 47 C.F.R. § 73.1015.
19 See 47 U.S.C. § 154(i),(j).
20 Response at 2. The Response notes that AFA's letter did
include a sentence stating, ``Please contact me if you have
further questions regarding AFA's compliance with 47 C.F.R.
Section 73.1125 at KBMP-FM, Enterprise, Kansas.'' Letter
from Patrick J. Vaughn to David Brown, dated November 21,
2003. However, that is no substitute for providing, for
each category of information requested, either the
information requested or an explanation as to why the
information was not available. Licensees are expected to
respond fully to requests for information from the
Commission. See, e.g., SBC Communications, Inc.,
Forfeiture Order, 17 FCC Rcd 7589, 7591 ¶ 4 (2002).
Allowing licensees to provide incomplete responses,
requiring the Bureau to do follow-up inquiries, would be a
substantial and wholly unnecessary drain on the Bureau's
resources.
21 Response at 2. It is not pertinent whether a licensee's
acts or omissions were specifically intended to violate the
applicable law or rule. The term ``willful,'' as used in
Section 503(b) of the Act, has been interpreted to mean
simply that the acts or omissions were committed knowingly.
See Liability of Cate Communications Corp., 60 RR 2d 1386
(1986). In this case, AFA does not argue that its Response
was submitted without its knowledge.
22 Id. at 1.
23 Supra at ¶ 7 and n. 4 (emphasis added).
24 Supra at ¶ 2 and n. 5.
25 In this regard, we note that AFA could have alleviated
its alleged confusion by simply requesting clarification
from the Enforcement Bureau staff person identified as the
contact person in the letter of inquiry prior to the date
AFA's Response was due. (This is the course of action
taken in the tax matter example described on page one of
AFA's Response, so that situation is clearly
distinguishable from the present case.) AFA did not do so.
26 See 47 C.F.R. § 1.1914.