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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No.: EB-
) NAL/Acct. No.
Trade Center Management, Inc. )
Licensee, Station KHRA(AM) )
Honolulu, Hawaii )
MEMORANDUM OPINION AND ORDER
Adopted: June 21, 2005 Released: June 23, 2005
By the Acting Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order (``Order''), we
deny the petition for reconsideration filed by Trade
Center Management, Inc. (``Trade Center''), licensee of
Station KHRA(AM) Honolulu, Hawaii. Trade Center seeks
reconsideration of the Forfeiture Order1 in which the
Chief, Enforcement Bureau (``Bureau''), found it liable
for a monetary forfeiture in the amount of $8,000 for
willful and repeated violation of Section 73.3526(b) of
the Commission's Rules (``Rules'').2 The noted violation
involves Trade Center's failure to maintain Station
KHRA's public inspection file at the station's main
2. On August 2, 2002, Commission agents from the
Commission's Honolulu, Hawaii Resident Agent Office inspected
Station KHRA and its main studio. The agents found that there
was no public inspection file maintained at the main studio.
KHRA's General Manager stated that there was no public inspection
file maintained at the main studio. On October 31, 2002, the
Honolulu Office issued a Notice of Apparent Liability for
Forfeiture (``NAL'') to Trade Center for willful and repeated
violation of Section 73.3526(b) of the Rules. Trade Center
responded to the NAL on November 27, 2002. On April 7, 2004, the
Enforcement Bureau issued a Forfeiture Order in which it upheld
the NAL but reduced the forfeiture amount from $10,000 to $8,000
based on Trade Center's history of overall compliance with the
Commission's rules. 3. On May 6, 2004, Trade Center filed a
petition for reconsideration (``petition'') of the Forfeiture
Order. In its petition, Trade Center argues that it did not
violate the public inspection file rule because most of the
documents required to be maintained for public inspection were
available at KHRA's main studio when the inspection was
conducted. Trade Center also argues that the record does not
support the Commission's finding that Trade Center's violation of
the public file rule was willful or repeated. III. DISCUSSION
4. The forfeiture amount in this case 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.5 In
examining Trade Center's petition, 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 any other such matters as
justice may require.6
5. In its petition, Trade Center reiterates that KHRA's
General Manager, Mr. Ki-Yeoun Kim, declared in response to the
NAL that most of the documents to be kept in a public inspection
file were in a cabinet at the main studio at the time of the
inspection.7 Therefore, Trade Center argues, the Bureau's
finding that the public inspection file was not available was
inaccurate. Although we note that Mr. Kim did make this
statement in his declaration, we also note that in the same
declaration, Mr. Kim stated:
``After receiving the NAL in early November,
I have consulted with communications counsel,
who has explained the FCC's public inspection
file requirements to me. Based upon that
advice, I have created a public inspection
file which is now available for inspection by
the public Mondays through Fridays during
regular business hours.''8 (emphasis added)
Thus, by Mr. Kim's own admission, he did not create the public
inspection file until after the issuance of the NAL more than
three months after the inspection. We therefore find no reason
to alter our finding that Trade Center failed to maintain a
public inspection file for Station KHRA at the station's main
6. Trade Center next argues that the record does not
support the Bureau's finding that Trade Center's conduct was
willful or repeated, taking issue with the Order's statement that
``[e]ven 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 be the basis for a ``good faith'' reduction of the
forfeiture because Trade Center did not make those documents
available to the FCC Agent when he requested the public file.''
Trade Center asserts that this statement implies that Mr. Kim
consciously withheld the public file from the agents. We do not
believe the statement makes any implication about Mr. Kim's
intentions. Moreover, Mr. Kim's intentions are irrelevant to the
issue of whether Trade Center's violation of Section 73.3526(b)
of the Rules was willful. The term ``willful,'' as used in
Section 503(b) of the Act, does not require a finding that the
rule violation was intentional or that the violator was aware
that it was committing a rule violation.9 Rather, the term
``willful'' simply requires that the violator knew it was taking
the action in question, irrespective of any intent to violate the
Commission's rules.10 As stated in the Order, Trade Center made
a conscious decision to have a technical file available at KHRA's
transmitter site but not at its main studio. Because of this
decision, and the fact that there was no public inspection file
at the main studio, Trade Center's violation of Section
73.3526(b) was willful. Nothing in Trade Center's petition leads
us to any other conclusion. Further, Trade Center attributes its
not producing the public inspection file to a mutual mistake in
assumptions between the investigating agent and Mr. Kim.
Assuming that Mr. Kim, because of his lack of proficiency in
English, did not understand that the agent was requesting the
public inspection file, the fact remains that there was no public
inspection file at the main studio for Mr. Kim to produce.
7. Finally, although Trade Center asserts that the
record does not justify the Order's finding that
Trade Center repeatedly11 violated the public
inspection file rule, we can reach no other
conclusion given Trade Center's admission that it
did not create the public inspection file until
after it received the NAL.
8. Based on the foregoing, which establishes that
Trade Center's violation of the public inspection
file rule was both willful and repeated, we
conclude that the $8,000 forfeiture should be
IV. ORDERING CLAUSES 9. Accordingly, IT IS ORDERED
that, pursuant to Section 405 of the Act12 and Section 1.106 of
the Rules,13 Trade Center Management, Inc.'s petition for
reconsideration of the April 7, 2004 Forfeiture Order IS DENIED.
10. 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.14
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 Federal Communications Commission, P.O. Box 358340,
Pittsburg, PA 15251-8340. Payment by overnight mail may be sent
to Mellon Bank/LB 358340, 500 Ross Street, Room 1540670,
Pittsburg, PA 15251. Payments by wire transfer may be made to
ABA Number 043000261, receiving bank Mellon Bank, and account
11. IT IS FURTHER ORDERED THAT this Order shall be
sent by regular mail and by certified mail, return receipt
requested, to Henry A. Solomon, Esq., Garvey Schubert Barer, 1000
Potomac Street, NW, Washington, DC 20007-3501.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith Acting Chief, Enforcement
1 19 FCC Rcd 6287 (Enf. Bur. 2004).
2 47 C.F.R. § 73.3526(b).
3 47 U.S.C. § 503(b).
4 47 C.F.R. § 1.80.
5 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
6 47 U.S.C. § 503(b)(2)(D).
7 See petition at page 2. See also response to NAL, Declaration
of Ki-Yeoun Kim, paragraph 2.
8 See Declaration of Ki-Yeoun Kim at paragraph 3.
9 47 U.S.C. § 312(f)(1).
11 Section 312(f)(2) defines the term repeated as the commission
or omission of any act more than once or if such commission or
omission is continuous, for more than one day. 47 U.S.C. §
12 47 U.S.C. § 405.
13 47 C.F.R. § 1.106.
14 47 U.S.C. § 504(a).