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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number EB-02-DL-295
)
Citadel Broadcasting Company ) NAL/Acct. No.200432500004
Licensee of FM Broadcast Station )
KSYY located ) FRN 0001-5952-14
in Kingfisher, Oklahoma )
FORFEITURE ORDER
Adopted: December 22, 2004 Released: December 27,
2004
By the Assistant Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of nine thousand dollars
($9,000), to Citadel Broadcasting Company (``Citadel''), licensee
of Station KSYY(FM), Kingfisher, Oklahoma, for willful and
repeated violation of Sections 73.1125(a) and 73.3526 of the
Commission's Rules ("Rules").1 The noted violations involve
Citadel's failure to maintain the required staff and management
presence at the station's main studio and failure to maintain all
of the required material in the station's public inspection file.
2. On March 8, 2004, the Commission's Dallas, Texas, Field
Office ("Dallas Office") issued a Notice of Apparent Liability
for Forfeiture ("NAL")2 in the amount of nine thousand dollars
($9,000) to Citadel. Citadel filed its response on April 7,
2004.
II. BACKGROUND
3. On June 6, 2002, the Dallas Field Office
received a written complaint alleging violations of the
Commission's Rules by radio station KLGH.3 Station KLGH's call
sign subsequently was changed twice, first to WWLF-FM and then to
KSYY-FM.
4. On February 20, 2003, an agent from the Dallas
Office sought to inspect KSYY-FM's main studio during regular
business hours, but was unable to do so as there was no
management or staff at the main studio. The main studio is
located at 7725-B West Britton Road in Oklahoma City, Oklahoma.
On February 21, 2003, the agent conducted an inspection of KSYY-
FM during regular business hours and discovered the station's
public file was missing required documentation including
programming and issues lists and the most recent ownership
report.4
5. During the February 21, 2003 inspection, the agent
had a conversation with Mr. Mike Fields, the station's Chief
Engineer. Mr. Fields informed the agent that KSYY-FM's
managerial office is located on NW 64th Street in Oklahoma City,
over four miles away from the main studio. Mr. Fields also
stated that no management personnel worked in the main studio
location and that the hours of operation for the main studio were
from 8:00 a.m. to 5:00 p.m. No sign was present at the main
studio listing the normal business hours of operation.5 The
agent issued an oral warning to Mr. Field regarding the
violations.
6. On August 21, 2003, the same agent from the Dallas
Office again attempted to inspect KSYY-FM's main studio on
Britton Road, Oklahoma City during regular business hours. At
10:14 a.m., there was no individual present at the main studio.
In response to the agent's telephone call, KSYY-FM's General
Manager traveled from its managerial offices to provide access to
the public file. During the inspection the agent noted that
certain required information concerning programming presented to
address local community issues was missing or deficient.6 During
the inspection, the station's general manager stated that KSYY-
FM's regular business hours were 12 noon to 9:00 p.m.,7 however,
there was no display of the station's call sign or the hours of
operation. The general manager also stated that the station was
contemplating requesting a waiver to allow it to move its main
studio to the location on NW 64th St.
7. On March 8, 2004, the Dallas Office issued the NAL
in the amount of nine thousand dollars ($9,000) to Citadel.
Citadel filed its response on April 7, 2004. In its response,
Citadel seeks cancellation of the proposed forfeiture because the
agent inspected the station during the morning, prior to its
normal hours of business, 12 noon to 9 p.m. Citadel argues that
because its normal business hours are from 12 noon to 9 p.m., it
satisfies the Commission's Rule as the phrase ``normal business
hours'' is not defined. Moreover, Citadel asserts that a manager
was present at the studio with a staffer during its normal
business hours. Citadel states that it has now altered its
normal business hours to 9 a.m. to 5 p.m. as a result of the NAL.
Citadel's response also stated that it reviewed its public file
after the August 21, 2003 inspection and found the public
inspection file contained the most recent ownership report on
that date. The agent was notified of that fact by telephone on
the same day. Citadel also asserts that all quarterly issues and
program lists have since been placed in the files and that
Citadel has a good record of compliance.
III. DISCUSSION
·
8. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the Communications
Act of 1934, as amended (``Act''),8 Section 1.80 of the Rules,9
and The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd
303 (1999) (``Forfeiture Policy Statement''). In examining
Citadel'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 such other matters as justice may require.10
9. Section 73.1125(a) of the Rules requires that every
broadcast station licensee maintain a main studio for the
station. To serve the needs and interests of the residents of the
station's community of license, the licensee must maintain a
full-time staff and managerial presence at the main studio during
normal business hours.11 The agent's inspections establish that
management and staff level personnel were repeatedly absent from
the main studio. Moreover, members of Citadel's managerial staff
admitted that its management office is located elsewhere and no
manager works full time at their main studio. Based upon the
agent's observations and the Citadel employee admissions, Citadel
does not satisfy the minimum requirements of Section 73.1125(a)
of the Rules. 12
10. Moreover, Citadel cannot rely on its own,
unannounced version of normal business hours as compliance with
the Rule. The purpose of the Rule is to allow access by the
general public to the station's records and ensure compliance
with the community's needs.13 The meaning of normal business
hours is that in which the business community normally conducts
business, not the hours a station chooses to allow public access.
The Commission has advised FM licensees of its meaning of the
phrase ``normal business hours'' and issued a Public Notice to
define normal business hours as generally an eight hour period
between the hours of 8 a.m. to 6 p.m.14 Accordingly, we
conclude that Citadel willfully15 and repeatedly16 violated
Section 73.1125(a) of the Rules.
11. Section 73.3526 of the Rules requires commercial broadcast
stations to maintain a public inspection file at the main studio
of the station. The public file available at the station's main
studio on February 21, 2003 and August 21, 2003 was missing some
of the required material. The February 21, 2003 violations
include both the ownership report and the Issues and Programs
Lists, the August 21, 2003 violation concerns only the Issues and
Programs Lists. Citadel does not dispute that certain quarterly
Issues and Programs Lists were missing from the Station's public
inspection file. After review of Citadel's response, we find no
basis to overturn the agent's determination that required items
were repeatedly missing from the local public file. Nor can
Citadel's statement that it has remedied the deficiencies
regarding Issues and Program Lists result in mitigation of its
violations.17 We conclude that Citadel did not maintain a
complete public inspection file at KSYY-FM's main studio, in
willful and repeated violation of Section 73.3526 of the Rules
and impose the forfeiture proposed in the NAL.
12. We have examined Citadel's response to the NAL pursuant to
the statutory factors above, and in conjunction with the
Forfeiture Policy Statement as well. As a result of our review,
we conclude that Citadel willfully and repeatedly violated
Sections 73.1125(a) and 73.3526 of the Rules and that neither
cancellation nor further reduction of the proposed $9,000
monetary forfeiture is warranted.
IV. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b)
of the Act and Sections 0.111, 0.311 and 1.80(f)(4) of the
Rules,18 Citadel Radio, Inc., IS LIABLE FOR A MONETARY FORFEITURE
in the amount of nine thousand dollars ($9,000) for willfully and
repeatedly violating Sections 73.1125(a) and 73.3526 of the
Rules.
14. Payment of the forfeiture shall be made in the
manner provided for in Section 1.80 of the Rules within 30 days
of the release of this Order. If the forfeiture is not paid
within the period specified, the case may be referred to the
Department of Justice for collection pursuant to Section 504(a)
of the Act.19 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/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, and P.O. Box
73482, Chicago, Illinois 60673-7482. Payment by wire transfer
may be made to ABA Number 071000013, receiving bank Bank One, and
account number 1165259. Requests for full payment under an
installment plan should be sent to: Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W., Washington,
D.C. 20554.20
15. IT IS FURTHER ORDERED that, a copy of this Order shall be
sent by Certified Mail, Return Receipt Requested, and by First
Class Mail to Citadel Broadcasting Company,
Larry Bastida, General Manager, Station KSYY,
Citadel Broadcasting Company, 4045 NW 64th, Suite 600, Oklahoma
City, OK 73116 and its counsel Christopher J. Sova, Esquire,
Leventhal Senter & Lerman PLLC, 2000 K Street, N.W., Suite 600,
Washington, D.C. 20006.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Chief, Enforcement Bureau
_________________________
1 47 C.F.R. §§ 73.1125(a), 73.3526.
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200432500004 (Enf. Bur., Dallas Office, released March 8, 2004).
3 The complaint alleged a failure to keep the station's public
file up to date, a failure to staff the main studio during normal
business hours, failure to log EAS Broadcasts and failure to
originate EAS weekly tests. Only the public file and main studio
managerial staffing allegations were cited in the NAL and
resulted in issuance of the NAL.
4 An ownership transfer had occurred approximately five months
prior to the inspection. An ownership transfer requires timely
filing of a new ownership report.
5 The signage listed the call sign KLGH.
6 See Section 73.3526 of the Rules, 47 C.F.R. § 73.3526.
7 The agent's inspection was attempted at 10:41 AM.
8 47 U.S.C. § 503(b).
9 47 C.F.R. § 1.80.
10 47 U.S.C. § 503(b)(2)(D).
11 Jones Eastern of the Outer Banks, Inc., 6 FCC Rcd 3615, 3616
and n.2 (1992), clarified, 7 FCC Rcd 6800 (1992).
12 Id. at 6802.
13 See Main Studio and Program Origination Rules, 2 FCC Rcd 3215,
3217-3218 (1987), clarified 3 FCC Rcd 5024, 5026 (1988) and Jones
Eastern of the Outer Banks, Inc., 6 FCC Rcd 3615, 3616 (1991),
clarified, 7 FCC Rcd 6800, 6802 (1992).
14 See Bulletin EB-18FM, November 1, 2001; March 2003, June 18,
2003 and May 2004 Editions, page 6, Section 1, G.
15 Section 312(f)(1) of the Act, 47 U.S.C. § 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,'
... 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).
16 The 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 U.S.C. §
312(f)(2).
17 Remedial measures do not warrant mitigation when they occur
after Commission notification. See AT&T Wireless Services, Inc.,
17 FCC Rcd 7891 (2002); Seawest Yacht Brokers, 9 FCC Rcd 6099,
6099 ¶7 (1994); TCI Cablevision of Maryland, Inc., 7 FCC Rcd
6013, 6014 ¶8 (1992).
18 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
19 47 U.S.C. § 504(a).
20 See 47 C.F.R. § 1.1914.