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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of )
Broadcast Entertainment Corporation )
Former Licensee of: )
File Numbers: EB-07-DV-056
KICA(AM) )
EB-07-DV-057
Clovis, New Mexico )
NAL/Acct. No.: 200732800005
Facility ID # 61577 )
FRN: 0000012898
KKYC(FM) )
Clovis, New Mexico )
Facility ID # 33402 )
)
)
MEMORANDUM OPINION AND ORDER
Adopted: March 27, 2008 Released: March 31, 2008
By the Associate 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, to the extent indicated
herein, a Petition for Reconsideration ("Petition") filed on October
10, 2007, by Broadcast Entertainment Corporation ("BEC"), former
licensee former licensee of stations KICA(AM) and KKYC(FM) serving
Clovis, New Mexico, of a Forfeiture Order issued by the Western
Region ("Region") of the Enforcement Bureau, imposing an eight
thousand dollar ($8,000) monetary forfeiture penalty against BEC for
willful and repeated violation of Section 73.3526 of the Commission's
Rules ("Rules"). The noted violation involves BEC's failure to
maintain a complete public inspection file at each station. For the
reasons discussed below, we cancel the forfeiture. We also admonish
BEC for its willful and repeated violation of Section 73.3526 of the
Rules.
II. BACKGROUND
2. On January 10, 2007, an agent from the Enforcement Bureau's Denver
Office conducted an inspection of KICA(AM) and KKYC(FM) at the
station's main studio location in Clovis, New Mexico, during normal
business hours. The inspection revealed that the stations' public
inspection files did not contain all of the required quarterly radio
issues/programs lists for the entire license term. The current license
term for each of the stations started on October 1, 2005.
3. On June 18, 2007, the Denver Office issued a NAL in the amount of
$8,000 to BEC, finding that BEC apparently willfully and repeatedly
failed to maintain complete public inspection files for KICA(AM) and
KKYC(FM). BEC filed a response ("Response") on July 16, 2007, arguing
that the proposed forfeiture amount should be cancelled because BEC is
no longer the licensee of KICA(AM) and KKYC(FM), that the violation a
mistake due to a change in management of the stations, and that BEC
rectified the violation after the inspection by the Denver Office.
4. In the Forfeiture Order, issued September 11, 2007, the Region
considered all the issues raised by BEC and found that although BEC
was no longer the licensee of KICA(AM) and KKYC(FM), it was still an
ongoing concern and, therefore, there were no extenuating
circumstances or any other grounds to support canceling the
forfeiture. The Region also found no merit to BEC's arguments that its
failure to place the missing quarterly issues/programs lists in the
public inspection file was a mistake due to a change in management and
was rectified shortly after the inspection. The Region reiterated the
Commission's determination that a licensee is expected to correct
errors when they are brought to the licensee's attention and that such
correction is not grounds for a downward adjustment in the forfeiture,
and that where lapses occur in maintaining the public inspection file,
neither the negligent acts nor omissions of station employees or
agents, nor the subsequent remedial actions undertaken by the
licensee, excuse or nullify a licensee's rule violation
III. DISCUSSION
5. 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. In it Petition, BEC raises
facts that it had not made known to the Region at the time that the
Forfeiture Order was released. BEC, in its Petition, states, for the
first time, that it has no ability to pay, no assets, no money, no
bank accounts, no shareholders, no officers, and no address. BEC also
states that it requested dissolution from Texas State Comptroller on
August 17, 2007. As part of its Petition, BEC includes its filings
with the Texas State Comptroller.
6. After reviewing the particular circumstances in this case, and per the
discretion authorized by Section 504(b) of the Act, and implemented by
Section 1.80(i) of the Rules, we conclude that cancellation of the
$8,000 forfeiture is warranted. Nevertheless, we find that it is
appropriate to admonish BEC for its willful and repeated violation of
Section 73.3526 of the Rules.
IV. ORDERING CLAUSES
7. 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, Broadcast Entertainment Corporation's Petition for
Reconsideration, filed October 10, 2007, IS GRANTED TO THE EXTENT
INDICATED HEREIN AND DENIED IN ALL OTHER RESPECTS.
8. IT IS FURTHER ORDERED, pursuant to Section 504(b) of the
Communications Act of 1934, as amended ("Act"), and Section 1.81(i) of
the Commission's Rules, that the forfeiture in the amount of eight
thousand dollars ($8,000) issued to Broadcast Entertainment
Corporation, in the September 11, 2007, Forfeiture Order for willful
and repeated violations of Section 73.3526 of the Rules IS CANCELLED.
9. IT IS FURTHER ORDERED that Broadcast Entertainment Corporation, IS
ADMONISHED for its willful and repeated violations of Section 73.3526
of the Rules.
10. IT IS FURTHER ORDERED that this Order shall be sent by regular mail
and by certified mail, return receipt requested, to Broadcast
Entertainment Corporation, at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Associate Chief, Enforcement Bureau
47 U.S.C. S: 405.
47 C.F.R. S: 1.106.
On March 21, 2007, the Commission granted an application (File No.
BAL-20070201BFW) to assign the KICA(AM) and KKYC(FM) licenses from
Broadcast Entertainment Corporation to Tallgrass Broadcasting, LLC. The
transaction was consummated on April 2, 2007.
Broadcast Entertainment Corporation, 22 FCC Rcd 16745 (EB 2007)
("Forfeiture Order").
47 C.F.R. S: 73.3526.
Forfeiture Order, 22 FCC Rcd at 16747.
Forfeiture Order, 22 FCC Rcd at 16747 (citing AT&T Wireless Services,
Inc., 17 FCC Rcd 21866, 21871-76 (2002)).
Forfeiture Order, 22 FCC Rcd at 16747 - 16748 (citing Padre Serra
Communications, Inc., 14 FCC Rcd 9709 (1999)).
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.
BEC also raises, for the first time, its history of compliance with the
Commission's Rules. Because we are cancelling the forfeiture on other
grounds, we do not reach this argument.
47 U.S.C. S: 504(b).
47 C.F.R. S: 1.80(i).
See Grass Roots Broadcasting, LLC, 19 FCC Rcd 4018 (EB 2004).
47 U.S.C. S: 405.
47 C.F.R. S: 1.106.
Federal Communications Commission DA 08-741
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Federal Communications Commission DA 08-741