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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
)
Gaston College
) File No. EB-05-IH-0219
Licensee of Noncommercial
Educational ) NAL Account No. 200732080021
Station WSGE(FM), Dallas, North ) FRN No. 0009387226
Carolina
)
Facility I.D. No. 23324
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 7, 2007 Released: March 7, 2007
By the Chief, Investigations and Hearings Division, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Gaston College, licensee of Noncommercial Educational Station
WSGE(FM), Dallas, North Carolina (the "Station"), willfully and
repeatedly violated Section 73.3527 of the Commission's rules relating
to a noncommercial licensee's obligation to properly maintain and make
available a public inspection file. For the following reasons, we
conclude that Gaston College is apparently liable for the base
forfeiture amount of $10,000.
II. BACKGROUND
2. On March 7, 2005, the Commission received a complaint (the
"Complaint") from J. Davidson Morrison (the "Complainant"), who
alleges that licensee Gaston College prohibited him from viewing the
Station's public inspection file consistent with Commission rules on
two separate visits made to the Station's main studio. According to
the Complainant, during his first visit on March 3, 2005, he asked to
review the public inspection file, but was told by a Station employee
to come back another day. He states that after he informed the Station
employee that FCC rules require that the file must be made available
on request during regular business hours, the employee directed him to
a drawer containing some Station documents, but that the drawer did
not contain the public inspection file. Meanwhile, the Station
employee contacted the Station's General Manager, Stephanie
Michael-Pickett, who, upon arrival, also directed the Complainant to
the same drawer. Shortly thereafter, the College's Vice President for
Finance and Operations, Ralph Huddin, arrived and told the Complainant
that he could not look through the files without first making an
appointment with Gaston College's attorney. While still at the
Station, he was asked to take a call from Gaston College's attorney,
Carl Stewart, who directed him to leave the Station and the college's
campus or he would be arrested. The Complainant states that he left
without viewing the public inspection file.
3. The Complainant further alleges that, on advice from his legal
counsel, he gave Station management time to review the FCC rules
regarding public inspection files before returning to the Station the
next day, on March 4, 2005. He states that he visited the Station
again and was told by the Station's General Manager that he first
needed an appointment with Gaston College's attorney to view the
public inspection file. After informing the General Manager that such
a policy was illegal, he was permitted to review a public inspection
file binder and a hanging folder. Upon review of the binder and
hanging folder, he states that he noticed that the FCC publication,
"The Public and Broadcasting," a copy of which is required under the
rules to be maintained, was omitted from the public inspection file.
When he inquired about the absence of the publication, he was provided
with a copy. He states that he also discovered that the required
issues/programs list and equal employment opportunity ("EEO") report
were also missing from the public inspection file, but were later
provided after he inquired about them. He asserts that the
issues/programs list was incomplete.
4. The Enforcement Bureau (the "Bureau") issued a letter of inquiry (the
"LOI") to the licensee, which directed the licensee to respond to,
inter alia, the allegations in the Complaint. The licensee, through
its counsel, responded to the allegations. Although the licensee
generally does not dispute the allegations in the Complaint, the
licensee characterizes the Complainant's behavior during the first
visit as "hostile," and asks the Bureau to view the Complaint in the
context of its past dealings with the Complainant's employer, Columbia
Bible College. In this regard, the licensee contends that Columbia
Bible College has been engaged in a "pattern of harassment and
intimidation" by pursuing FCC proceedings against it, and that
Columbia Bible College's actions, through the Complainant, are
motivated by its prior unsuccessful efforts to acquire the Station.
The licensee alleges that Columbia Bible College is attempting to
misuse the Commission's processes to force Gaston College to sell the
Station.
III. DISCUSSION
5. Under Section 503(b)(1) of the Communications Act of 1934, as amended
(the "Act"), any person who is determined by the Commission to have
willfully or repeatedly failed to comply with any provision of the Act
or any rule, regulation, or order issued by the Commission shall be
liable to the United States for a monetary forfeiture penalty. In
order to impose such a forfeiture penalty, the Commission must issue a
notice of apparent liability, the notice must be received, and the
person against whom the notice has been issued must have an
opportunity to show, in writing, why no such forfeiture penalty should
be imposed. The Commission will then issue a forfeiture if it finds by
a preponderance of the evidence that the person has violated the Act
or a Commission rule. As we set forth in greater detail below, we
conclude under this standard that the Station is apparently liable for
a forfeiture for its apparent willful violation of Section 73.3527 of
the Commission's rules.
6. Section 73.3527 of the Commission's rules requires noncommercial
educational stations to maintain a public inspection file containing
specific types of information related to station operations.
Specifically, subsection (b) of the rule provides that "[t]he public
inspection file shall be maintained at the main studio of the
station," and subsection (c) requires that "[t]he file shall be
available for public inspection at any time during regular business
hours." Some examples of specific materials required for inclusion in
the file are the station's quarterly issues/programs lists, equal
employment opportunity file, and a copy of the most recent version of
the manual entitled "The Public and Broadcasting." All broadcast
stations have an obligation to serve their local community's needs and
interests and to comply with certain programming and other rules.
Because we do not monitor a station's programming, viewers and
listeners are a vital source of information about the programming and
possible rule violations. The documents in each station's public
inspection file have information about the station that can assist the
public in this important role.
7. Based on our review of the record, we find that licensee Gaston
College apparently violated Section 73.3527 when it failed to provide
access to its public inspection file to a member of the public upon
request and in a manner consistent with the rule. Gaston College
discourages us from making such a finding, contending that the
underlying basis for the Complaint is to harass and intimidate the
licensee. In our overall evaluation of the facts of the case, however,
we find no basis for excusing Gaston College from fully complying with
the requirements of Section 73.3527. Significantly, Gaston College, in
its LOI response, acknowledges that it initially refused to grant the
Complainant access to the Station's public inspection file; the
Station's General Manager later made attempts to show the Complainant
the file, but that the file could not be located; the Complainant was
instructed to return at a later time and to make sure to make an
appointment with Gaston College's attorney first before returning to
the Station; and that the attorney spoke with the Complainant by
telephone that day and asked the Complainant to leave the facility.
These admissions make clear that the licensee willfully failed to
comply with the public inspection file requirements.
8. As stated above, the FCC's public inspection file rule provides that
this file must be available for inspection during a station's normal
business hours. This rule has been interpreted to mean that the public
inspection file should "be available for immediate inspection by
members of the public," which the Station, in this case, failed to do
during the Complainant's visits on March 3 and 4, 2005. Although the
Complainant was eventually permitted to review the Station's public
inspection file on March 4^th, the record shows that the file, upon
initial review, did not contain all the materials required under
Section 73.3527(e), and that the Complainant had to specifically
request to see the missing materials (e.g., a recent copy of the "The
Public and Broadcasting"). On this point, the licensee acknowledges
that "the public file was generally organized, though it may have been
less organized than usual since [then-Station Manager Jeff Powell] was
in the midst of reviewing it and updating it." We remind the licensee
that the Commission has held that "a simple request to see the file
should be sufficient to elicit the complete file" without further
necessity of asking for documents piecemeal. The Commission, moreover,
has stated that "[m]embers of the public cannot be required to inspect
that file only through prior appointments or at times most convenient
to the licensee . . . ." Here, Station employees instructed the
Complainant during two separate visits to first make an appointment
before coming to the Station to view the public inspection file.
9. Gaston College argues that its failure to comply with the rule was the
result of a misunderstanding about the whereabouts of the file because
the file was in the process of being updated. Notwithstanding Gaston
College's admissions (as recited above) which, alone, serve as a
sufficient basis for a finding of a rule violation, the record does
not show that the licensee and its employees explained to the
Complainant why the file was unavailable. Furthermore, we do not find
this to be a reasonable excuse for the Station's failure to provide
access to the public inspection file. To condone excuses such as this
one would render the public inspection process meaningless.
10. Based upon the evidence before us, we find that the Station apparently
willfully and repeatedly violated Section 73.3527 of the Commission's
rules. Section 1.80 of the Commission's Rules sets a base forfeiture
amount of $10,000 for public file violations. In its LOI Response,
Gaston College requests that if the Bureau determines that a violation
occurred, it impose an admonishment rather than a forfeiture. In
support of this request, Gaston College cites Tabback Broadcasting and
American Family Association, each an admonishment against a radio
station for a public file violation. In Tabback Broadcasting, the
Audio Services Division considered a petition to deny the licensee's
renewal application. According to that petition, the petitioners
visited the licensee's studio three times over a six week period, and
requested to see the public file during each visit. They were denied
access the public file twice, and viewed the public file once. After
the petitioners' third visit, the licensee contacted the Audio
Services Division for clarification of its public file obligations.
Once the licensee was told that it must make the public file
accessible during normal weekly business hours, the licensee did so.
The Audio Services Division concluded that these facts did not
indicate a pattern of abuse sufficient to deny the renewal
application, and admonished the licensee for twice failing to make the
public file available.
11. In American Family Association, the Enforcement Bureau canceled a
proposed forfeiture against a noncommercial station whose public file
was found to be incomplete during an FCC inspection. The licensee
argued that, although the physical file was incomplete, the missing
materials were on-site and simply had not yet been placed in the file.
The Bureau concluded that, although the licensee had failed to
maintain a complete public file in violation of Section 73.3527(e) of
the Commission's rules, cancellation of the proposed forfeiture was
appropriate because the licensee had made a good faith attempt to
comply with the public file rules.
12. Contrary to Gaston College's contention, neither case controls here.
As noted above, the Tabback Broadcasting decision focused on the
choice between admonishment and license non-renewal, and did not
discuss whether the licensee willfully or repeatedly violated the
public file rule - the standard for issuing a forfeiture penalty.
American Family Association is also not on point because that case
concerned a station that - unlike here - immediately produced its
public file upon request. While the public file itself was incomplete,
the Enforcement Bureau concluded that an admonishment was appropriate
because the licensee had made a good faith effort to maintain a
complete file. The licensee here does not claim to have made such a
good faith effort to comply with the public file rules. Rather, the
undisputed facts are that the licensee explicitly refused to make the
public file available upon request, and ordered the Complainant to
leave the station without viewing the file.
13. Compliance with the public file rule is vitally important because the
rule "safeguards the public's ability to assess the station's service
and to meaningfully participate at the station's renewal process." In
the Forfeiture Policy Statement, the Commission found that omission of
even a single item from the public file is a serious violation because
it "diminishes the public's ability to determine and comment on
whether the station is serving the community." Accordingly, the
Commission set the base forfeiture amount for public file violations
at $10,000 - for broadcasters, only misrepresentation carries a higher
base forfeiture amount.
14. If omission of a single document from the public file is a serious
violation, the outright refusal to produce the public file is even
more egregious. In this case, we believe the violation was
sufficiently serious that we will propose a forfeiture at the base
amount of $10,000, due to the Station's outright refusal to make the
file available to a member of the public on more than one occasion,
and the fact that the file was incomplete when it was finally made
available. This amount is supported by our precedent. To the extent
Gaston College wishes to provide evidence of its history of compliance
with FCC rules, or its inability to pay the proposed forfeiture, it
may do so in its response to this Order.
IV. ORDERING CLAUSES
15. 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 of the Commission's Rules, Gaston College is hereby NOTIFIED of
its APPARENT LIABILITY FOR A FORFEITURE in the amount of $10,000 for
willfully violating Section 73.3527 of the Commission's rules.
16. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules, within 30 days of the release date of this Notice
of Apparent Liability for Forfeiture, Gaston College SHALL PAY the
full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
17. 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 in the
caption. 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 9116229.
18. Requests for payment of the full amount of this NAL under an
installment plan should be sent to Deputy Chief Financial Officer,
Room 1-A637, Federal Communications Commission, 445 12th Street, S.W.,
Washington, DC 20554.
19. The response, if any, to this Notice of Apparent Liability for
Forfeiture shall be mailed to Hillary S. DeNigro, Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, 445 12^th Street, S.W., Suite 4-C330,
Washington, D.C. 20554, and must include the NAL/Acct. No. referenced
in the caption.
20. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the respondent submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices; or (3) some other reliable and objective
documentation that accurately reflects the respondent's current
financial status. Any claim of inability to pay must specifically
identify the basis for the claim by reference to the financial
documentation submitted.
21. IT IS FURTHER ORDERED that the complaint filed by J. Davidson Morrison
IS GRANTED to the extent indicated herein and IS OTHERWISE DENIED, and
the complaint proceeding IS HEREBY TERMINATED.
22. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail - Return Receipt
Requested, and regular mail, to the Licensee at its address of record
and to counsel for the complainant, Robert J. Rini, Esquire, Rini
Coran, PC, 1501 M Street, N.W. Suite 1150, Washington, DC 20005.
FEDERAL COMMUNICATIONS COMMISSION
Hillary S. DeNigro
Chief, Investigations and Hearings Division
Enforcement Bureau
See 47 C.F.R. S 73.3527.
See Letter from J.Davidson Morrison to Enforcement Bureau, Federal
Communications Commission (the "FCC" or "Commission"), dated March 4, 2005
(the "Complaint") (transmitted by letter from Robert J. Rini, Esq., Rini
Coran P.C. to FCC, Enforcement Bureau dated March 7, 2005).
See id. at 1.
See id.
See id.
See id.
See id.
See id.
See id.
See id. at 2.
See id.
See id.
See id.
See Letter from William D. Freedman, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, FCC, to Gaston College, dated
January 20, 2006.
See Letter from Stephen Hartzell, Esq., counsel for Gaston College, to Tom
Hutton, Assistant Chief, Investigations and Hearings Division, Enforcement
Bureau, FCC, dated March 6, 2006, (the "Response Cover Letter")
transmitting Gaston College Response and attached exhibits (the "LOI
Response"). J. Davidson Morrison responded to the College's LOI Response
by letter from J.Davidson Morrison, to Tom Hutton, Assistant Chief,
Investigations and Hearings Division, Enforcement Bureau, FCC, dated March
22, 2006 (transmitted by letter from Robert J. Rini, Esq., Rini Coran P.C.
to Tom Hutton, Assistant Chief, Investigations and Hearings Division,
Enforcement Bureau, FCC, dated March 23, 2006) ("Complainant's Reply").
See Response Cover Letter at 2.
See id. at 2-3.
See id.
See 47 C.F.R. S 73.3527. Comparable requirements also apply to commercial
stations. See 47 C.F.R. S 73.3526.
47 C.F.R. S 73.3527(b) & (c).
See 47 C.F.R. S 73.3527(e).
See Response Cover Letter at 2.
See LOI Response at 5-6.
Thomas P. Brunnock, Letter Ruling, 50 RR.2d 1313, 1314 (1982). Accord
Riverside Broadcasting, Inc., Notice of Apparent Liability for Forfeiture,
15 FCC Rcd 18322, 18323 P 5 (Enf. Bur., Investigations & Hearings Div.
2000).
LOI Response at 6.
See, e.g., Review of the Commission's Rules Regarding the Main Studio and
Local Public Inspection Files of Broadcast Television and Radio Stations,
Report and Order, 13 FCC Rcd 15691, 15700-06 PP 18 and 32 (1998)
(explaining that, because the public may not be aware of the required
contents of public inspection files, the rule specifically requires that
the file contain the most recent version of the manual, "The Public and
Broadcasting," which details the required contents of the public
inspection file and describes the public's role in monitoring a "station's
operations and public interest performance. . . . ").
License Renewal Applications of Certain Commercial Television Stations
Service Philadelphia, Memorandum Opinion and Order, 67 RR.2d 1567, 1573
(1990).
See LOI Response at 3.
See 47 C.F.R. S 1.80.
See LOI Response at 4.
See Application of Tabback Broadcasting Co. for Renewal of License of
Station KAZM(AM), Sedona, Arizona, Letter Ruling, File No. 1800B3-JR (Mass
Media Bur., Audio Services Div. 1999) ("Tabback Broadcasting"), aff'd on
review, Memorandum Opinion and Order, 15 FCC Rcd 11899 (2000).
See American Family Association, Inc., Memorandum Opinion and Order, 18
FCC Rcd 16530 (Enf. Bur. 2003).
Tabback Broadcasting at 6.
See American Family Association, 18 FCC Rcd at 16532 P 9.
Id.
47 U.S.C. S 503(b).
American Family Association, 18 FCC Rcd at 16532 P 9.
New Life Broadcasting, Inc., Forfeiture Order, 21 FCC Rcd 8641 P10 (Enf.
Bur., South Central Region 2006). See also Faith Christian Music Broadcast
Industries, Inc., Forfeiture Order, 20 FCC Rcd 19051 (Media Bur. 2005).
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087, 17104-05 P39 (1999) (subsequent history omitted)
("Forfeiture Policy Statement").
Misrepresentation has the statutory maximum amount (currently $32,500 for
broadcasters) as its base forfeiture amount. 47 C.F.R. S 1.80(b)(4)(note).
See, e.g., Blountstown Communications, Inc., Memorandum Opinion and Order,
DA 07-230 (Enf. Bur. rel. Jan. 29, 2007) (denying reconsideration of
$10,000 forfeiture for failure to make public file available to requesting
FCC agent; ultimately reducing forfeiture due to history of compliance);
M&R Enterprises, Inc., Forfeiture Order, 17 FCC Rcd 14608 (Enf. Bur. 2002)
(finding a $10,000 forfeiture for failure to provide access to public
inspection file on two occasions, but ultimately reducing to $5,000 due to
licensee's inability to pay); Riverside Broadcasting, Inc., Notice of
Apparent Liability for Forfeiture, 15 FCC Rcd 18322 (Enf. Bur. 2000)
(finding licensee apparently liable for $10,000 forfeiture for denying
access to station's public inspection file on two different dates) (NAL
paid).
See 47 C.F.R. S 1.1914.
For purposes of the forfeiture proceeding initiated by this NAL, Gaston
College shall be the only party to this proceeding.
(...continued from previous page)
(continued....)
Federal Communications Commission DA 07-1073
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Federal Communications Commission DA 07-1073