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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-02-HL-073
Trade Center Management, Inc. )
Licensee of AM Station KHRA ) NAL/Acct. No.
Honolulu, Hawaii )
) FRN 0006351688
Adopted: April 5, 2004 Released: April 7, 2004
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of eight thousand dollars
($8,000), to Trade Center Management, Inc. (``Trade Center''),
licensee of Station KHRA, Honolulu, Hawaii, for willful and
repeated violation of Section 73.3526(b) of the Commission's
Rules ("Rules").1 The noted violation involves Trade Center's
failure to maintain the Station KHRA's public inspection file at
the main studio.
2. On October 31, 2002, the Commission's Honolulu, Hawaii,
Resident Agent Office ("Honolulu Office") issued a Notice of
Apparent Liability for Forfeiture ("NAL")2 in the amount of ten
thousand dollars ($10,000) to Trade Center. Trade Center filed a
response on November 27, 2002.
3. On August 2, 2002, Commission agents from the Honolulu
Office inspected KHRA and its main studio. The agents
found that there was no public inspection file
available at the main studio. KHRA's General Manager
stated that there was no public inspection file
maintained at the main studio.
4. On October 31, 2002, the Honolulu Office issued a NAL
for violation of Section 73.3526(b) of the Rules. On
November 27, 2002, Trade Center submitted a response to
the NAL. In that response, Trade Center seeks
cancellation of the proposed forfeiture. Trade Center
asserts that it misunderstood the public inspection
file requirement, believing that it was required to
maintain a ``technical'' file at its transmitter site.
Trade Center also asserts that most of the documents
required to be kept in the public inspection file were
in a cabinet at the main studio, that no one had ever
asked for KHRA's public inspection file and that no one
was ever denied access to any document required to be
kept in the public inspection file. In addition, Trade
Center states that it now has a public inspection file
available at the main studio and that it has good
record of compliance with FCC requirements. In
addition, Trade Center argues that it relied on the
advice of its engineer.
5. The proposed forfeiture amount in this case is
being was assessed 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 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 Trade Center'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.5
6. Section 73.3526(b) of the Rules requires
commercial broadcast stations to maintain a public inspection
file at the main studio of the station. It is undisputed that
there was no public file available during the agents' inspection
of KHRA's main studio on August 2, 2002, or prior to that date.
Trade Center made a conscious decision to a have a ``technical''
file available at its transmitter site but not at the main
studio. We find that Trade Center's violation of Section
73.3526(b) of the Rules was willful 6 and repeated. 7
7. Trade Center's apparent misunderstanding of the
public file rule does not mitigate its violations. Licensees are
responsible for knowing and observing the rules affecting their
8. Even if most of the documents required to be kept
in the public inspection file were in a cabinet at the main
studio, this fact would not would not be the basis for a ``good
faith'' reduction of the proposed forfeiture because Trade Center
did not make those documents available to the FCC agent when he
requested the public file.
9. Even if no actual harm resulted from Trade
Center's violation, there was a significant risk of harm because
the public inspection file would not have been available if a
member of the public requested it. 9 We find that the violations
are not mitigated by any lack of harm.
10. No mitigation is warranted on the basis of Trade
Center's correction of the violation. As the Commission stated
in Seawest Yacht Brokers, 9 FCC Rcd 6099, 6099 (1994),
``corrective action taken to come into compliance with Commission
rules or policy is expected, and does not nullify or mitigate any
prior forfeitures or violations.''10
11. Trade Center argues that it was relying on the
advice of its engineer that it was not in violation of the FCC's
requirements. ``[T]he Commission has long held that licensees
and other Commission regulatees are responsible for the acts and
omissions of their employees and independent contractors and has
consistently refused to excuse licensees from forfeiture
penalties where actions of employees or independent contractors
have resulted in violations.''11
12. We do, however, find that Trade Center has a history of
overall compliance and, accordingly, reduce the forfeiture amount
13. We have examined Trade Center'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 Trade Center willfully and repeatedly
violated Section 73.3526(b) of the Rules and find that, although
cancellation of the proposed monetary forfeiture is not
warranted, reduction of the forfeiture amount to $8,000 is
IV. ORDERING CLAUSES
14. 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,12 Trade Center Management, Inc., IS LIABLE FOR A MONETARY
FORFEITURE in the amount of eight thousand dollars ($8,000) for
willfully and repeatedly violating Section 73.3526(b) of the
15. 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.13
Payment shall be made by mailing a check or similar instrument,
payable to the order of the "Federal Communications Commission,"
to the Federal Communications Commission, P.O. Box 73482,
Chicago, Illinois 60673-7482. The payment should note NAL/Acct.
No. 200332860001, and FRN0006351688. Requests for full payment
under an installment plan should be sent to: Chief, Revenue and
Receivables Group, 445 12th Street, S.W., Washington, D.C.
16. 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 Trade Center's counsel, John Crigler, Esq., Garvey
Schubert Barer, 1000 Potomac Street, N.W., Washington, D.C. 2007-
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. § 73.3526(b).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332860001 (Enf. Bur., Honolulu Office, released October 31,
3 47 U.S.C. § 503(b).
4 47 C.F.R. § 1.80.
5 47 U.S.C. § 503(b)(2)(D).
6 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).
7 As provided by 47 U.S.C. § 312(f)(2), a continuous
violation is ``repeated'' if it continues for more than one day.
The Conference Report for Section 312(f)(2) indicates that
Congress intended to apply this definition to Section 503 of the
Act as well as Section 312. See H.R. Rep. 97th Cong. 2d Sess. 51
(1982). See Southern California Broadcasting Company, 6 FCC Rcd
4387, 4388 (1991) and Western Wireless Corporation, 18 FCC Rcd
10319 at fn. 56 (2003).
8 See, e.g. In the Matter of Rego, Inc., 16 FCC Rcd 16795,
1697 (Enf. Bur. 2001).
9 In the Forfeiture Policy Statement, the Commission found
that the omission of even a single item (the issues/programs
list) from the public inspection file is a serious violation
because it ``diminishes the public's ability to determine and
comment on whether the station is serving the community.''
Forfeiture Policy Statement at 17104-05, para. 39.
10 See also Callais Cablevision, Inc., 17 FCC Rcd 22626, 22629
(2002); Radio Station KGVL, Inc., 42 FCC 2d 258, 259 (1973); and
Executive Broadcasting Corp., 3 FCC 2d 699, 700 (1966).
11 Eure Family Limited Partnership, 17 FCC Rcd 21861, 21863-64
(2002) (internal quotation marks omitted) and cases cited
12 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
13 47 U.S.C. § 504(a).
14 See 47 C.F.R. § 1.1914.