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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Christian Family Network, Inc. ) File Number EB-06-DT-277
Former Licensee of AM Station WOLY ) NAL/Acct. No. 200732360001
Battle Creek, Michigan ) FRN: 0010140358
Facility ID #11032 )
)
MEMORANDUM OPINION AND ORDER
Adopted: December 29, 2008 Released: December 31, 2008
By the Deputy Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order, issued pursuant to Section 405
of the Communications Act of 1934, as amended ("Act"), and Section
1.106 of the Commission's rules, we grant in part and deny in part a
Petition for Reconsideration ("Petition") filed on July 22, 2008, by
Christian Family Network, Inc. ("Christian Family Network"), former
licensee of AM station WOLY, in Battle Creek, Michigan. Christian
Family Network seeks reconsideration of a Forfeiture Order issued by
the Northeast Region ("Region") of the Enforcement Bureau, imposing a
ten thousand dollar ($10,000) monetary forfeiture for willful and
repeated violation of Section 301 of the Communications Act of 1934,
as amended ("Act"). The noted violation concerned Christian Family
Network's continued operation of its station after expiration of its
license. For the reasons discussed below, we deny the Petition with
regard to the Region's finding that Christian Family Network willfully
and repeatedly violated Section 301 of the Act and we grant the
Petition with regard to Christian Family Network's inability to pay
and reduce the forfeiture to five thousand dollars ($5,000).
II. BACKGROUND
2. Christian Family Network's license authorizing it to operate station
WOLY on frequency 1500 kHz expired on October 1, 2004. Christian
Family Network never filed a license renewal application, which was
due June 1, 2004, nor did it file a request for Special Temporary
Authority ("STA") either to operate its station after October 1, 2004,
or to remain silent. As a result, in a letter dated June 13, 2006, the
Media Bureau notified Christian Family Network that "...all authority
to operate station WOLY(AM), Battle Creek, MI IS TERMINATED and the
call letters are deleted. Any operation of this facility is now
unauthorized and must cease immediately...."
3. On July 14, 2006, based on information from an area resident that the
station continued to operate, agents from the Commission's Detroit
Office monitored transmissions on 1500 kHz in Battle Creek, MI. Using
direction finding techniques, the agents determined that the source of
the transmissions on 1500 kHz was 15074 6 . Mile Road, Battle Creek,
MI 49014, which was the previously authorized location for station
WOLY's transmitter.
4. On August 17, 2006, an agent spoke to the owner and President of
Christian Family Network, Inc., James Elsman. The agent advised Elsman
that the station's license was cancelled for failure to file a license
renewal application and that the station therefore is no longer
authorized to operate. Elsman stated that he tried to file his license
renewal application electronically, but was unable to do so.
5. On March 2, 2007, and May 22, 2007, an agent from the Commission's
Detroit Office monitored 1500 kHz in Battle Creek, MI and, using
direction finding techniques, verified that the station continued to
operate at 15074 6 . Mile Road in Battle Creek.
6. On August 16, 2007, the Detroit Field Office issued a Notice of
Apparent Liability for Forfeiture ("NAL") in the amount of $10,000 to
Christian Family Network for apparently willfully and repeatedly
violating Section 301 of the Act by engaging in unauthorized
operations of its station after its license expired. In its response,
Christian Family Network claimed that it did not willfully violate
Section 301 of the Act and that it could not file its license renewal
application because it did not have a computer. It reported that it
filed a request for a special temporary authorization ("STA") on
December 10, 2006, and that, since that time, it had assumed that the
request would be answered by the FCC. Christian Family Network also
claimed that it did not have the ability to pay the proposed
forfeiture.
7. In the Forfeiture Order, issued July 17, 2008, the Region considered
Christian Family Network's response to the NAL and determined that
cancellation or reduction of the forfeiture was not warranted.
Specifically, the Region addressed Christian Family Network's claims
that its violation was not willful, that it could not file its license
renewal application because it did not have a computer, that it filed
a request for Special Temporary Authorization ("STA") on which the FCC
never acted, and that it cannot afford to pay the forfeiture. The
Region found that Christian Family Network's violation was willful
because Christian Family Network continued to operate its station
after the Media Bureau cancelled its license and after FCC agents
warned that continued operation of the station was unauthorized. The
Region also rejected Christian Family Network's claim that it could
not comply with the mandatory electronic filing requirement for its
license renewal application because it did not have a computer. The
Region explained that Christian Family Network could have used a
computer at a public institution or it could have requested a waiver
of the electronic filing requirement. With regard to the alleged
request for an STA, the Region found that there was no record of
Christian Family Network having filed such a request, but the Region
concluded that, even if Christian Family Network had filed the
request, an STA is available only to permittees and licensees and
Christian Family Network's alleged STA request was filed on December
10, 2006, more than two years after its license had expired. The
Region also denied Christian Family Network's request for reduction or
cancellation of the forfeiture based on its inability to pay because
Christian Family Network did not submit any supporting documentation.
III. DISCUSSION
8. Reconsideration is appropriate only where the petitioner either
demonstrates a material error or omission in the underlying order or
raises additional facts not known or not existing until after the
petitioner's last opportunity to present such matters. A petition for
reconsideration that reiterates arguments that were previously
considered and rejected will be denied. Christian Family Network has
raised no new facts or arguments regarding the Region's finding in the
Forfeiture Order that Christian Family Network willfully and
repeatedly violated Section 301 of the Act and therefore we deny the
Petition with regard to the violation of Section 301 of the Act. We
take the opportunity below, however, to reiterate certain findings in
the Forfeiture Order regarding the Section 301 violation. We also
address below Christian Family Network's claim that it cannot pay the
forfeiture amount.
9. At issue in this proceeding is the Region's finding that Christian
Family Network willfully and repeatedly violated Section 301 of the
Act by operating a broadcast station long after the Media Bureau had
canceled the license and deleted the call sign for station WOLY.
Contrary to Christian Family Network's claims, this proceeding is not
about the alleged unconstitutionality of the Commission's mandatory
electronic filing requirements established for license renewal
applications, requirements with which Christian Family Network claims
it was not able to comply and which resulted in the cancellation of
its license. As the Region explained in the Forfeiture Order, to the
extent Christian Family Network believed that cancellation of its
license for failure to file a license renewal application was in
error, Christian Family Network's legal recourse was to file a
petition for reconsideration under Section 405(a) of the Act, which
the Region noted does not need to be filed electronically. Christian
Family Network has never addressed why it did not file such a
petition. Christian Family Network continued to operate its station
after receiving warnings from FCC agents that such operation was
illegal and could subject it to further enforcement action. The
cancellation of Christian Family Network's authorization to operate
station WOLY and the cancellation of its call sign has become a final
Commission order that is no longer subject to review. Christian Family
Network's continued operation of station WOLY therefore violated
Section 301 of the Act.
10. Christian Family Network claims that it cannot afford to pay the
$10,000 forfeiture. With regard to an individual's or entity's
inability to pay, the Commission has determined that, in general,
gross revenues are the best indicator of an ability to pay a
forfeiture. After examining the financial documentation submitted by
Christian Family Network, we find that a reduction in the forfeiture
to $5,000 is warranted based on Christian Family Network's
demonstrated inability to pay the full forfeiture amount assessed 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, Christian Family Network's Petition for
Reconsideration IS DENIED IN PART and GRANTED IN PART and the
forfeiture is reduced to five thousand dollars ($5,000).
12. 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/Account
Number and FRN Number referenced above. Payment by check or money
order may be mailed to Federal Communications Commission, P.O. Box
979088, St. Louis, MO 63197-9000. Payment by overnight mail may be
sent to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005
Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may be
made to ABA Number 021030004, receiving bank TREAS/NYC, and account
number 27000001. For payment by credit card, an FCC Form 159
(Remittance Advice) must be submitted. When completing the FCC Form
159, enter the NAL/Account number in block number 23A (call sign/other
ID), and enter the letters "FORF" in block number 24A (payment type
code). Requests for full payment under an installment plan should be
sent to: Chief Financial Officer -- Financial Operations, 445 12th
Street, S.W., Room 1-A625, Washington, D.C. 20554. Please contact
the Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov with any questions regarding payment procedures.
Christian Family Network shall also send electronic notification on
the date said payment is made to NER-Response@fcc.gov.
13. IT IS FURTHER ORDERED that this Order shall be sent by regular mail
and by certified mail, return receipt requested, to Christian Family
Network at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Deputy Bureau Chief
Enforcement Bureau
47 U.S.C. S: 405.
47 C.F.R. S: 1.106.
Although Christian Family Network captioned its pleading as a "Response to
Forfeiture Order," we treat it as a petition for reconsideration
("Petition") pursuant to Section 1.106 of the Commission's Rules,
47.C.F.R. S: 1.106.
Christian Family Network, Inc., Forfeiture Order, 23 FCC Rcd 10898 (EB
2008) ("Forfeiture Order").
47 U.S.C. S: 301.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200732360001
(Enf. Bur., Detroit Office, released August 16, 2007).
See 47 C.F.R. S: 1.106(c); EZ Sacramento, Inc., 15 FCC Rcd 18257 (EB
2000), citing WWIZ, Inc., 37 FCC 685, 686 (1964), aff'd sub. nom. Lorain
Journal Co. v. FCC, 351 F.2d 824 (D.C. Cir. 1965), cert. denied, 383 U.S.
967 (1966).
EZ Sacramento, Inc., 15 FCC Rcd at 18257.
47 U.S.C. S: 405(a).
See Forfeiture Order at n.16.
For the first time in this proceeding, Christian Family Network submits a
letter, dated September 27, 2004, which it allegedly sent to the
Commission and which Christian Family Network now claims was a petition to
waive the mandatory electronic filing requirements. Even if Christian
Family Network in fact filed the letter and even if it could be considered
a waiver request, the proper forum for making such a claim would have been
in a proceeding reconsidering the Media Bureau's cancellation of the
license for station WOLY.
See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088, 2089 (1992)
(forfeiture not deemed excessive where it represented approximately 2.02
percent of the violator's gross revenues); Local Long Distance, Inc., 16
FCC Rcd 24385 (2000) (forfeiture not deemed excessive where it represented
approximately 7.9 percent of the violator's gross revenues); Hoosier
Broadcasting Corporation, 15 FCC Rcd 8640 (2002) (forfeiture not deemed
excessive where it represented approximately 7.6 percent of the violator's
gross revenues). We also note that, although we are not required under
Section 1.106(c) to consider information not previously submitted to the
Region, we find that it is in the public interest to consider the
financial documentation submitted by Christian Family Network in support
of its inability to pay claim. See 47 C.F.R. S: 1.106(c)(2).
47 U.S.C. S: 405.
47 C.F.R. S: 1.106.
47 U.S.C. S: 504(a).
(...continued from previous page)
(continued....)
Federal Communications Commission DA 08-2815
2
Federal Communications Commission DA 08-2815