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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
)
New Life Broadcasting, Inc. File Number EB-06-SJ-006
)
Licensee of Station WBRQ NAL/Acct. No. 200632680002
)
Cidra, Puerto Rico FRN 0004504486
)
Facility ID# 1891
)
)
FORFEITURE ORDER
Adopted: July 27, 2006 Released: August 1, 2006
By the Regional Director, South Central Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of three thousand two hundred dollars ($3,200) to New Life
Broadcasting, Inc. ("New Life"), licensee of station WBRQ in Cidra,
Puerto Rico, for willful violation of Section 73.3526 of the
Commission's Rules ("Rules"). The noted violation involves New Life's
failure to maintain a complete public inspection file.
II. BACKGROUND
2. On February 8, 2006, agents from the Commission's San Juan Resident
Agent Office of the Enforcement Bureau ("San Juan Office") conducted
an inspection of station WBRQ-FM located in Caguas, Puerto Rico. The
agents observed that the station's public file did not contain any
radio issues/programs lists for the period of January 1, 2004 through
December 31, 2005. This was brought to the attention of the station's
general manager at the time of inspection, and the general manager was
unable to produce the documents. On February 12, 2006, in a facsimile
sent to the San Juan Office by New Life's president, the quarterly
issues/programs list for the period of October 1 through December 31,
2005 was provided. No other reports for the period in question were
provided.
3. On April 25, 2006, the Resident Agent of the San Juan Office issued a
Notice of Apparent Liability for Forfeiture ("NAL") in the amount of
$4,000 to New Life. New Life filed a response to the NAL dated May
25, 2006.
III. DISCUSSION
4. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act, Section 1.80 of the Rules, and The
Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines. In examining
New Life'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. Section 73.3526 of the Rules requires AM and FM broadcast stations to
maintain for public inspection a public inspection file containing the
material, relating to that station, described in paragraphs (e)(1)
through (e)(10), (e)(12), (e)(13), and (e)(14) of this section. On
February 8, 2006, agents from the San Juan Office requested to inspect
the station's public file. The public file was missing the quarterly
radio issues/programs lists covering a period of two years, namely,
January 1, 2004 through December 31, 2005.
6. In its response to the NAL, New Life makes several arguments
challenging the proposed forfeiture. First, New Life argues that the
$4,000 forfeiture amount for failure to maintain a complete public
inspection file is inconsistent with other Commission actions for
similar violations. New Life cites three Commission monetary
forfeiture cases, Faith Christian Music Broadcast Ministries,
Inc.("Faith Christian"), Richard Hildreth, Esq. ("Hildreth"), and
Barry D. Wood, Esq. ("Wood"), in support of this argument.
7. In Faith Christian, the Commission's Media Bureau issued a Notice of
Apparent Liability in the amount of $3,000 for violation of Section
73.3526 of the Rules, specifically, failure to include issues/programs
lists in the station's public file. We do not find the forfeiture
amount in the instant case to be inconsistent with Faith Christian. In
the Faith Christian NAL, the Bureau explained that the base forfeiture
amount for public file violations is $10,000; that the violation was
voluntarily revealed to the Commission in the context of a license
renewal application; and that the licensee had already taken
corrective action to correct the violation and prevent its recurrence.
The Bureau stated that a $4,000 forfeiture was appropriate for the
violation in that case but reduced it to $3,000 due to the licensee's
voluntary disclosure. New Life further argues that in Faith Christian,
the licensee "did not voluntarily report its violation out of the
blue" but rather "responded truthfully to a Commission question rather
than engage in a misrepresentation." The circumstances in the instant
case differ. New Life did not discover the violation by its own
investigation, did not voluntarily disclose the violation to the
Commission, and had not taken action to remedy the violation prior to
its discovery by the Commission agent. There are no facts to indicate
that New Life would have corrected or even discovered the violation
absent the inspection by the Commission agent. Nothing in Faith
Christian leads us to the conclusion that the forfeiture amount
assessed to New Life is inconsistent.
8. In Hildreth, the Commission's Field Operations Bureau reduced a
monetary forfeiture amount for violation of Section 73.3526 of the
Rules to $1,000. In Hildreth, however, the public file was missing one
item, namely, the most recent ownership report. In the instant case,
the public file was missing the quarterly issues/programs list for
eight consecutive quarters. In Wood, the Commission's Field Operations
Bureau initially issued a $4,750 monetary forfeiture, which included a
$3,500 penalty for violation of Section 73.3526 of the Rules. In
response to the licensee's Petition for Reconsideration, the Bureau
reduced the total forfeiture to $3,000 based on the statutory factors
listed in Section 503(b) of the Act mentioned above, but "especially
lack of evidence concerning past noncompliance with the FCC's rules."
We do not find the $4,000 penalty in the instant case to be out of
line with the original amounts assessed in both Hildreth and Wood.
However, even though the penalties assessed in Hildreth and Wood are
less than the $4,000 assessed in the instant case, New Life fails to
take into account that, at the time of the Hildreth and Wood
decisions, the base forfeiture amount for public file violations was
$7,500. In 1997, the base forfeiture amount for public file violations
was increased to $10,000. It should be no surprise that the penalties
for similar violations have increased in fourteen years. In reviewing
decisions more recent than the fourteen year old Hildreth and Wood
cases cited by New Life, we find that a monetary forfeiture of $4,000
is appropriate for failure to maintain issues/programs lists in the
public file.
9. New Life next challenges the Commission's justification for imposing
any monetary forfeiture for this violation, questioning the value of
the requirement for issues/programs lists. New Life makes several
unsubstantiated claims regarding WBRQ's service to its community and
daily response to its community's needs, and that the Commission
should not sanction such an "exemplary" station "for missing a few
documents in its file." New Life then reasons that, since WBRQ's
service to its listeners has always been "exemplary" while at the same
time, apparently admitting, WBRQ failed to maintain issues/programs
lists, that this casts doubt on whether "issues/programs list really
provide much of anything to anyone." New Life also questions the
lists' value because "the Commission does not require that stations
submit their issues/programs lists to the FCC, so it is unknown how
the Commission can possibly derive useful information from those
lists." New Life chides the Commission's reliance on its "predictive
judgment" that the lists serve a purpose. Instead, according to New
Life, the public file rules have existed long enough that the
Commission should have been able to cite examples "over the past
fifteen years where a member of the public has used information from
such lists" and to "readily observe whether the policy actually
works."
10. The public file rules are rooted in Section 307(b) of the Act and
codified in Part 73 of the Rules. The Commission has found that
reasonable access to the public inspection file serves the important
purpose of facilitating citizen monitoring of a station's operations
and public interest performance, and fostering community involvement
with local stations, thus helping to ensure that stations are
responsive to the needs and interests of their local communities. New
Life argues that the Commission's alleged inability to identify
individual members of the public that have used information from the
issues/programs lists to challenge a licensee's renewal puts into
serious question the viability of the requirement to maintain the
lists. We disagree. The licensee in Faith Christian made a similar
argument, that "there was no harm done to the public because `the
public has no interest whatsoever in the content of radio station
issues and programs lists.'" The Commission's Media Bureau responded
that they "strongly disagree. Issues/programs lists provide both the
Commission and the listening public with important information
regarding the extent to which a station has met the needs and
interests of its community during the prior license term, and
therefore, whether license renewal is warranted." In the Forfeiture
Policy Statement, the Commission found that the omission of even a
single item 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." Thus, the base
forfeiture amount for violation of public file rules is currently set
at $10,000, one of the highest base amounts enumerated for any
violation. The Commission's public file rule safeguards the public's
ability to assess the station's service and to meaningfully
participate at the station's renewal process. The rule also is
designed to facilitate the airing of programming responsive to
community needs. These requirements are integral components of a
licensee's obligation to serve the public interest and meet its
community service obligations. "[V]iolations are not mitigated by the
licensee's view that compliance with the rule is unimportant." In
addition, the Media Bureau has made enforcement of the public file
rule a priority. For instance, the Media Bureau has issued the
following statement: "Our decision to fine ... stations reflects the
seriousness of the violations.... The public file provides citizens
with important information about broadcasters' service to their
communities ..., [and] the FCC will not tolerate less than diligent
efforts to ensure the accuracy and timeliness of that information."
Further, contrary to New Life's contention that the Commission relies
only on its "predictive judgment" that the public file rules serve a
purpose, the Commission performed an exhaustive review of those rules
in 1998. In that review, the Commission had the opportunity to delete
the issues/programs list requirement had it deemed appropriate. It did
not. In fact, in response to several commenters' proposals that the
retention period for issues/programs lists be reduced, the Commission
pointedly refused, explaining: "The lists contain information about
licensee compliance with public interest obligations which is relevant
to the evaluation of licensee performance at renewal, and must
continue to be available throughout the license term and until final
grant of the next renewal application."
11. While New Life does not dispute the fact that they failed to produce
the issues/programs lists upon the Commission agent's request, New
Life attempts to explain that the particular circumstances involving
the missing public file items would have resulted in no harm to a
member of the public requesting such items. With regards to the public
file contents, New Life states that "the station maintained a
duplicate public file located in the home of one of the station's
principals." With regards to the missing items, New Life explains
"[h]ad a member of the public, like the FCC inspector, asked for
copies of programs and issues lists ..., New Life's management would
have been happy to have forwarded them."
12. New Life's recitation of the facts differs from that of the Commission
agents'. According to the agents, after reviewing the public file and
finding the issues/programs lists missing, the agent specifically
mentioned the omission to the station's general manager during the
inspection on February 8, 2006. The general manager was unsuccessful
at producing the missing documents during the inspection. On February
12, 2006, the president of New Life sent to the San Juan Office by
facsimile a copy of one quarterly issues/programs list for the time
period October 1 through December 31, 2005. None of the other seven
missing quarters' lists were provided. Contrary to New Life's
contention that they "would have been happy to have forwarded" the
missing items to anyone who requested them, WBRQ's management was
unable to provide any of the missing items during the inspection, as
required by the rules, and, in fact, supplied only one of the missing
eight quarters' lists four days after the inspection request. Even if
New Life could have provided all of the missing items, maintaining the
items remote from the station's main studio and providing those days
later does not comply with the public inspection rules.
13. New Life requests reduction of the forfeiture based on their
"unblemished record ... in compliance with the Commission's rules."
After considering New Life's past history of compliance, we conclude
that a reduction of the forfeiture amount to $3,200 is appropriate.
14. In conclusion, New Life does not deny the fact that eight consecutive
quarterly issues/programs lists were missing from WBRQ's public file
and could not be produced when requested by a Commission agent. The
violation is mitigated neither by New Life's maintaining a copy of the
public file contents at a remote location inaccessible to the public,
nor by producing a small portion of the missing documents four days
after the request. New Life attacks the policy behind the requirement
to maintain issues/programs list. However, the proper course of action
to effectuate those concerns is a petition for a rule change, not to
violate the rule and argue against the policy after-the-fact. Thus,
based on the evidence, we find that New Life willfully violated
Section 73.3526 of the Rules by failing to make available a complete
public inspection file.
15. We have examined New Life's response to the NAL pursuant to the
statutory factors above, and in conjunction with the Forfeiture Policy
Statement. We find no basis for cancellation of the forfeiture, but do
find that reduction of the forfeiture amount from $4,000 to $3,200
based on New Life's history of compliance is appropriate.
IV. ORDERING CLAUSES
16. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311 and
1.80(f)(4) of the Commission's Rules, New Life Broadcasting, Inc. IS
LIABLE FOR A MONETARY FORFEITURE in the amount of $3,200 for violation
of Section 73.3526 of the Rules.
17. 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. 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, Pittsburgh, PA 15251-8340. Payment by overnight mail may
be sent to Mellon Bank /LB 358340, 500 Ross Street, Room 1540670,
Pittsburgh, PA 15251. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and account
number 911-6106. Requests for full payment under an installment plan
should be sent to: Associate Managing Director, Financial Operations,
445 12th Street, S.W., Room 1A625, Washington, D.C. 20554.
18. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to New Life
Broadcasting, Inc. at its address of record; and an additional copy to
New Life's legal counsel, Shainis & Peltzman, Chartered, Washington,
D.C.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
Enforcement Bureau
47 C.F.R. S 73.3526.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200632680002
(Enf. Bur., San Juan Office, released April 25, 2006).
47 U.S.C. S 503(b).
47 C.F.R. S 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
Policy Statement").
47 U.S.C. S 503(b)(2)(D).
47 C.F.R. S 73.3526.
Forfeiture Order, NAL/Acct. No. MB-AD 20031810033, DA 05-3088 (MB 2005).
7 FCC Rcd 6292 (FOB 1992).
7 FCC Rcd 6262 (FOB 1992).
NAL/Acct. No. MB-AD 20031810033, DA 03-3072 (MB 2003).
Id.
7 FCC Rcd 6262.
See Standards for Assessing Forfeitures, 6 FCC Rcd 4695 (1991); modified
on recon., 7 FCC Rcd 5339 (1992).
See Forfeiture Policy Statement; 47 C.F.R. S 1.80.
See, e.g., JMK Communications, Inc., 2006 WL 334665, DA 06-323 (Enf. Bur.
2006) (portion of forfeiture attributed to missing issues/programs lists
reduced to $4,000). See also "FCC Fines 28 Radio Stations for Public File
Violations," news release, 2003 WL 22309168, (October 8, 2003)
(publicizing Media Bureau's issuance of 28 NALs for failure to adequately
comply with FCC's public file requirements in which the Bureau determined
that $4,000 fines were warranted but made downward adjustments based on
licensees' voluntary disclosures of the violations).
47 U.S.C. S 307.
Review of the Commission's Rules Regarding the Main Studio Rule and Local
Public Inspection Files of Broadcast Television and Radio Stations, 13 FCC
Rcd 15691, 15700 (1998).
Faith Christian, Forfeiture Order, DA 05-3088 at P 8.
Id.
See Forfeiture Policy Statement at 17104-05 P 39. See also Broadcast
Localism, 19 FCC Rcd 12425, 12441 (2004) (emphasizing "the fundamental
importance of the issues and programs lists and other contents of the
public file in terms of documenting how broadcast stations serve their
communities.").
See Forfeiture Policy Statement; 47 C.F.R. S 1.80.
Forfeiture Policy Statement at 17104-05 P 39.
47 U.S.C. S 307(a).
Faith Christian, Forfeiture Order, DA 05-3088 at P 8.
See "FCC Fines 28 Radio Stations for Public File Violations," news
release, 2003 WL 22309168, (October 8, 2003)
13 FCC Rcd 15691.
Id. at P 47.
See Max Media of Montana, L.L.C., 18 FCC Rcd 21375, 21379 P 14 (Enf. Bur.
2003); South Central Communications Corp., 18 FCC Rcd 700, 703 P 9 (Enf.
Bur. 2003).
47 U.S.C. S 503(b).
47 C.F.R. SS 0.111, 0.311, 1.80(f)(4).
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 06-1537
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Federal Communications Commission DA 06-1537