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Before the
Federal Communications Commission
Washington, D.C. 20554
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In the Matter of
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Wilson Broadcasting, Inc.
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Licensee of WJJN-FM FRN: 0004333019
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Columbia, Alabama File Number: EB-07-AT-015
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Facility ID # 30280 NAL/Acct. No.: 200732480006
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Licensee of WAGF (AM) File Number: EB-07-AT-013
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Dothan, Alabama NAL/Acct. No.: 200732480004
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Facility ID # 30278 File Number: EB-07-AT-014
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Licensee of WAGF-FM NAL/Acct. No.: 200732480005
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Dothan, Alabama
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Facility ID # 30279
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MEMORANDUM OPINION AND ORDER
Adopted: August 16, 2007 Released: August 20, 2007
By the Associate Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order ("Order"), we deny the petition
for reconsideration filed by Wilson Broadcasting, Inc. ("Wilson"),
licensee of station WJJN-FM, in Columbia, Alabama and stations WAGF
(AM) and WAGF-FM in Dothan, Alabama ("Three Stations"), of the
Forfeiture Order issued April 23, 2007. The Forfeiture Order imposed a
monetary forfeiture in the amount of $12,000 on Wilson for the willful
and repeated violation of Section 73.3526 of the Commission's Rules
("Rules"). The noted violations involved Wilson's failure to maintain
complete public inspection files for the Three Stations.
II. BACKGROUND
2. The Three Stations are co-located in one main studio. On January 23,
2007, an agent from the Commission's Atlanta Office of the Enforcement
Bureau ("Atlanta Office") requested to inspect the Three Stations'
public inspection files during normal business hours. The stations'
owner directed the agent to a single file cabinet with three drawers,
one for each station. The top drawer of the file cabinet contained one
file folder for the Three Stations' Issues/Programs lists that
contained one document labeled Issues/Programs and dated March 2003.
The Three Stations' owner admitted that he had not compiled the
Issues/Programs lists since March 2003, and no material for any of the
lists was readily available at the co-located main studio.
3. On February 13, 2007, the Atlanta Office issued three Notices of
Apparent Liability for Forfeiture to Wilson, each in the amount of
four thousand dollars ($4,000), for the apparent willful and repeated
violation of Section 73.3526 of the Rules. Wilson submitted a single
response to the NALs requesting a reduction or cancellation of the
proposed forfeiture. On April 23, 2007, the Enforcement Bureau
("Bureau") released the Forfeiture Order, in which the Bureau
addressed the three NALs. The Bureau received Wilson's petition for
reconsideration on May 23, 2007, requesting reduction or cancellation
of the forfeiture.
III. DISCUSSION
4. The 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
Wilson'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.
5. In its petition for reconsideration, Wilson again alleges that its
forfeiture should be cancelled or reduced because the Three Stations'
issues/programs lists were prepared, but not placed in the public
inspection files. Wilson again states that, due to the owner's
nervousness, he did not know the agent wanted to see the stations'
issues/programs lists because she referred to "issues lists."
According to the agent, the agent requested to inspect the Three
Stations' public inspection files and mentioned the Broadcast
Self-Inspection Checklist to Wilson's owner, for more information.
Wilson's owner produced the public inspection files that contained a
folder with one issues/programs list dated March 2003. The agent asked
for additional "Issues/Programs lists," and that the owner admitted
that the more recent lists had not been compiled. The owner did not
produce any evidence during the inspection that the lists had been
maintained. According to Wilson's owner, however, the agent asked to
inspect the public inspection files and then said something to the
effect of do you admit that "issues lists" - as opposed to
"issues/programs lists" - after March 2003 are not in the file, to
which he replied, yes. Wilson's owner asserts if he had known what the
agent wanted, or "had he ever been asked," he would have confirmed
that the issues/programs lists were being maintained and might have
been able to produce them. In support of his sworn statement, Wilson's
owner attached to its response to the NALs copies of issues/programs
lists compiled after March 2003.
6. Despite Wilson's statement that recent issues/programs lists were
maintained elsewhere at the station during the inspection, we find no
reason to reduce or cancel the forfeiture. Wilson's owner was aware of
what a public inspection file is and admits that, during the
inspection, he produced public inspection files, which included a
folder containing an old issues/programs list. Wilson's owner also
admits that current issues/programs lists were not maintained in the
public inspection files and that he did not make available complete
public inspection files on January 23, 2007. The possibility that
Wilson's owner did not understand the agent's question after producing
and viewing the issues/programs list folder is irrelevant, because the
agent was not required to provide the owner an additional opportunity
to supplement the public inspection files during the inspection.
Moreover, the Bureau has previously assessed $4,000 forfeitures for
willfully failing to make available all required issues/programs
lists. Accordingly, the District Director of the Atlanta Office could
have issued three notices of apparent liability to Wilson each
proposing a $4,000 forfeiture for willfully failing to make available
a complete public inspection file. Therefore, as in the Forfeiture
Order, we uphold the forfeiture, because on January 23, 2007, the
required issues/programs lists were not located in the public
inspection files and complete public inspection files were not
provided to the agent.
7. Wilson also requests a reduction of the forfeiture due to the
circumstances or gravity of the violation. Although it acknowledges
that each station was required to maintain its own issues/programs
list, it claims the three lists would have been identical because the
stations broadcast the same public affairs programming and it should
not be penalized three times for failing to maintain two extra copies
of the same paper. It also again claims that the lists had been
compiled, contrary to the statements contained in the NAL, and that no
member of the public asked to inspect the public inspection files.
Finally, Wilson requests a reduction in the amount of the forfeiture,
citing several cases in which violators received forfeitures less than
$4,000 for missing Issues/Programs lists.
8. We find no basis upon which to reduce Wilson's forfeiture. Section
73.3526 of the Rules is clear that each station must maintain a
separate public inspection file. Although Wilson's stations may have
broadcast the same local issues programming, the stations are not
required to do so and are required to maintain separate
issues/programs lists; i.e. the Three Stations cannot share a single
copy of issues/programs lists. Indeed, Issues/Programs lists identify
programming, which addresses the needs of the communities of license,
which in this case are not the same; station WJJN does not share the
same community of license as stations WAGF. Therefore, we do not agree
that Wilson is being penalized three times for the same violation or
that its forfeiture should be reduced. Similarly, we do not agree that
its forfeiture should be reduced because no other member of the public
requested to inspect the public inspection files. The rules require
public inspection files to be available upon request, and Wilson was
unable to comply fully with the rules. The harm, inability to provide
full information to the public, exists whether or not a member of the
public, who is not an agent, requests to inspect the public inspection
file.
9. Finally, we do not agree that failing to make available a complete
public inspection file is a less serious violation than failing to
maintain and make available a complete public inspection file. In both
cases, the required information would be unavailable to the requesting
member of the public. Moreover, we do not agree that we should reduce
the forfeiture, based on the cases cited by Wilson in which the
licensee received forfeitures less than $4,000 for missing
issues/programs lists. The latest Notice of Apparent Liability for
these cases was released on August 26, 2005. Recent cases have
consistently assessed forfeitures of $4,000 for missing two or more
quarters of Issues/Programs lists. Accordingly, we decline to reduce
the forfeitures, as they are consistent with current forfeiture
amounts.
10. Therefore, we find no basis upon which to cancel or reduce the
forfeiture imposed in the Forfeiture Order.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to Section 405 of the
Communications Act of 1934, as amended, and Section 1.106 of the
Commission's Rules, Wilson Broadcasting, Inc.'s petition for
reconsideration of the April 23, 2007 Forfeiture Order IS hereby
DENIED.
12. IT IS ALSO ORDERED that, pursuant to Section 503(b) of the Act, and
Sections 0.111, 0.311 and 1.80(f)(4) of the Rules, Wilson
Broadcasting, Inc. IS LIABLE FOR A MONETARY FORFEITURE in the amount
of twelve thousand dollars ($12,000) for violations of Section 73.3526
of the Rules.
13. Payment of the $12,000 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.
14. IT IS FURTHER ORDERED that this Order shall be sent by regular mail
and by certified mail, return receipt requested, to Wilson
Broadcasting, Inc. at its address of record and to its counsel, Dan J.
Alpert, 2120 North 21st Road, Arlington, VA 22201.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Associate Chief, Enforcement Bureau
Wilson Broadcasting, Inc., Forfeiture Order, 22 FCC Rcd 7438 (Enf. Bur.
South Central Region, 2007) ("Forfeiture Order").
47 C.F.R. S: 17.51(a).
The Forfeiture Order incorrectly stated that the station produced one
public inspection file for the Three Stations in response to the agent's
request.
Notices of Apparent Liability for Forfeiture, NAL/Acct. No. 200732480004,
200732480005, and 200732480006 (Enf. Bur., Atlanta Office, February 13,
2007) ("NALs"). We consolidated the NALs into one Forfeiture Order,
because Wilson submitted one response to the NALs.
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).
47 U.S.C. S: 503(b)(2)(D).
The Broadcast Self-Inspection Checklist has a check box for
"issues-programs listings." The station owner was familiar with this
checklist, as he had previously participated in the Alternate Broadcast
Inspection Program.
In response to the agent's requests, Wilson's owner was able to produce a
file that contained old issues/programs lists, which were in the same
format as the more recent issues/programs lists that the owner claims to
have compiled.
See, e.g., Fannin County Broadcasting, Notice of Apparent Liability for
Forfeiture, NAL/Acct. No. 200732480007 (Enf. Bur. Atlanta Office, February
8, 2007).
See Gerald Parks, Notice of Apparent Liability for Forfeiture, NAL/Acct.
No. 200532360003 (Enf. Bur. Detroit Office, August 26, 2005). In
Twenty-One Sound Communications, the Bureau reduced the forfeiture
associated with the public file violation from $10,000 to $3,000 in the
Forfeiture Order, however, that order was released July 27, 2005.
Twenty-One Sound, Forfeiture Order, 20 FCC Rcd 12496 (Enf. Bur. South
Central Region 2005).
See, e.g., Fannin County Broadcasting, Notice of Apparent Liability for
Forfeiture, NAL/Acct. No. 200732480007 (Enf. Bur. Atlanta Office, February
8, 2007), Community Broadcast Group, Notice of Apparent Liability for
Forfeiture, NAL/Acct. No. 200732500003 (Enf. Bur. Dallas Office, January
30, 2007), Cumulus Licensing, LLC, Notice of Apparent Liability for
Forfeiture, NAL/Acct. No. 20073270006 (Enf. Bur. Tampa Office, January 3,
2007), Multicultural Radio Broadcasting Licensee, Notice of Apparent
Liability for Forfeiture, NAL/Acct. No. 200732940003 (Enf. Bur. San Diego
Office, December 28, 2006), Access.1 NY License Company, LLC, Notice of
Apparent Liability for Forfeiture, NAL/Acct. No. 20073238000 (Enf. Bur.
New York Office, July 12, 2006).
47 U.S.C. S: 405.
47 C.F.R. S: 1.106.
47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4), 17.51(a).
47 U.S.C. S: 504(a).
See 47 C.F.R. S: 1.1914.
Federal Communications Commission DA 07-3643
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Federal Communications Commission DA 07-3643