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Before the
Federal Communications Commission
Washington, DC 20554
)
) EB-03-IH-0687
In the Matter of
) Facility ID No. 133411
POWER RADIO CORPORATION
) NAL/Account No.
Licensee of Noncommercial Educational 200932080020
Station KXPW-LP, Georgetown, Texas )
FRN 0006560650
)
)
FORFEITURE ORDER
Adopted: July 21, 2009 Released: July 21, 2009
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order, we impose a monetary forfeiture of $6,000
against Power Radio Corporation ("PRC" or "Licensee"), licensee of
noncommercial educational Station KXPW-LP, Georgetown, Texas
("Station"), for violating Section 399B of the Communications Act of
1934, as amended (the "Act"), and Section 73.503(d) of the
Commission's rules by broadcasting advertisements over the Station.
I. background
2. This case arises from a complaint made to the Commission in November
2003, alleging that noncommercial educational Station KXPW-LP broadcast
prohibited underwriting announcements on July 16, 2003. Thereafter, the
Enforcement Bureau ("Bureau") inquired of the Licensee concerning the
allegations contained in the complaint. PRC responded to the August 9th
LOI on September 13, 2004. Prior to that response, however, the
Complainant alleged that the Station had aired further prohibited
underwriting announcements on August 23 and 24, 2004, about which the
Bureau inquired on October 20, 2004. Further responsive pleadings
followed.
3. On March 18, 2009, the Bureau issued a Notice of Apparent Liability for
Forfeiture ("NAL"), finding that the Licensee had apparently violated the
pertinent statute and Commission rules, and proposing a monetary
forfeiture of $20,000. On March 14, 2009, PRC responded to the NAL,
claiming inability to pay and requesting that the proposed forfeiture be
cancelled.
III. DISCUSSION
4. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Communications Act, Section 1.80 of the
Commission's Rules, and the Commission's forfeiture guidelines set forth
in its Forfeiture Policy Statement. In assessing forfeitures, Section
503(b) of the Act requires that we 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 matters as justice may require. As discussed
further below, we have examined PRC's response to the NAL pursuant to the
aforementioned statutory factors, our rules, and the Forfeiture Policy
Statement, and find that while cancellation is not appropriate, a
reduction on the basis of inability to pay is warranted.
5. In its NAL Response, PRC does not dispute the Bureau's NAL finding that
the eight announcements violated the Commission's underwriting rules and
so we adopt the NAL's apparent conclusion concerning those announcements.
Instead, PRC claims that, due to its straitened financial condition, it
cannot satisfy the forfeiture amount and argues that cancellation is
warranted due to such hardship. PRC also claims that none of the employees
who were involved with broadcasting the problem underwriting announcements
currently work at the Station.
6. Although any post-facto station staffing actions taken by PRC are not
mitigating, the establishment of an inability to pay claim is a relevant
factor in deciding whether to reduce or cancel the forfeiture amount. In
its NAL Response, PRC provided its bank statement for March 2009 and its
tax returns for 2006 and 2007. PRC states that it has filed for an
extension for its 2008 tax return due to the death of the president and
owner of PRC. PRC also contends that its 2009 income has declined
precipitously. Because of its recently reduced financial condition, PRC
requests that the Commission rescind the forfeiture.
7. The Commission has determined that a licensee's gross revenues are the
best yardsticks for determining its ability to pay, and that the net-loss
experience does not, in the absence of other mitigating factors,
demonstrate a licensee's inability to pay. After reviewing PRC's financial
documentation and in light of its gross revenues, we do not agree with PRC
that cancellation is appropriate in this case. We find, however, that a
reduction on the basis of inability to pay is warranted. Accordingly, as a
result of our review of PRC's response to the NAL, and in view of the
statutory factors and the Forfeiture Policy Statement, we affirm the NAL
and issue a monetary forfeiture in the amount of $6,000.
IV. ORDERING CLAUSES
8. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended (the "Act"), and Section 1.80 of
the Commission's rules, Power Radio Corporation, IS LIABLE FOR A MONETARY
FORFEITURE in the amount of $6,000 for willfully and repeatedly violating
Section 399B of the Act, as amended, and Section 73.503(d) of the
Commission's Rules.
9. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within thirty (30) days of the release of this
Forfeiture 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 No. and FRN No. 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 24A (payment type code). PRC will also send electronic
notification on the date said payment is made to Hillary.DeNigro@fcc.gov,
Ben.Bartolome@fcc.gov, Kenneth.Scheibel@fcc.gov, and
Anita.Patankar-Stoll@fcc.gov. 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.
10. IT IS FURTHER ORDERED that a copy of this Order shall be sent, by
Certified Mail/Return Receipt Requested, to Power Radio Corporation, P.O.
Box 73, Georgetown, Texas 78627.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
See 47 U.S.C. S: 399b.
See 47 C.F.R. S: 73.503(d).
See Letter from Barry A. Friedman, Esq., to William D. Freedman, Deputy
Chief, Investigations and Hearings Division, Enforcement Bureau, dated
November 5, 2003 ("November 5th Complaint"), filed on behalf of Ixoye
Productions, Inc., licensee of noncommercial educational Station KNLE-FM,
Round Rock, Texas ("Complainant").
See Letter from William D. Freedman, Deputy Chief, Investigations and
Hearings Division, Enforcement Bureau, to PRC, dated August 9, 2004
("August 9th LOI").
See Letter from Lauren Lynch Flick, Esq., to Kenneth M. Scheibel, Jr.,
Attorney, Investigations and Hearings Division, Enforcement Bureau, dated
September 13, 2004, and filed on behalf of PRC ("September 13th
Response").
See Letter from Barry A. Friedman, Esq., to William D. Freedman, Deputy
Chief, Investigations and Hearings Division, Enforcement Bureau, dated
August 24, 2004 ("August 24th Complaint"); Letter from William D.
Freedman, Deputy Chief, Investigations and Hearings Division, Enforcement
Bureau, to PRC, dated October 20, 2004 ("October 20th LOI").
See Letter from Lauren Lynch Flick, Esq., to Kenneth M. Scheibel, Jr.,
Attorney, Investigations and Hearings Division, Enforcement Bureau, dated
November 9, 2004 ("November 9th Response"); Letter from Barry A. Friedman,
Esq., to William D. Freedman, Deputy Chief, Investigations and Hearings
Division, Enforcement Bureau, dated November 17, 2004 ("November 17th
Reply"); Letter from Lauren Lynch Flick, Esq., to Kenneth M. Scheibel,
Jr., Attorney, Investigations and Hearings Division, Enforcement Bureau,
dated January 24, 2005 ("January 24th Response").
See Power Radio Corporation, Notice of Apparent Liability for Forfeiture,
24 FCC Rcd 2572 (Enf. Bur. 2009) ("NAL").
See Power Radio Corporation, Response to the Notice of Apparent Liability
for Forfeiture, filed April 20, 2009 ("NAL Response").
See 47 U.S.C. S: 503(b).
See 47 C.F.R. S: 1.80.
See 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 (1997), recons. denied, 15 FCC Rcd 303 (1999)
("Forfeiture Policy Statement").
See 47 U.S.C. S: 503(b)(2)(E).
See NAL Response at 1.
See id. at 1.
Although PRC is unclear on this point, to the extent that it claims that
it has taken post-misconduct remedial action by removing those
responsible, we note that post-facto remedial actions, even if taken,
neither excuse nor mitigate a prior Commission rule violation. See AT&T
Wireless Services, Inc., Notice of Apparent Liability, 17 FCC Rcd 21866,
21871 (2002); KVGL, Inc., Memorandum Opinion and Order, 42 FCC Rcd 258,
259 (1973); Capstar TX Limited Partnership (WKSS(FM)), Notice of Apparent
Liability, 20 FCC Rcd 10636 (Enf. Bur. 2005) (forfeiture paid).
See NAL Response at Attachments.
See NAL Response at 1.
See id.
See id.
PJB Communications of Virginia, Inc., Memorandum Opinion and Order, 7 FCC
Rcd 2088 (1992) ("PJB Communications").
See Independent Communications Inc., Memorandum Opinion and Order and
Forfeiture Order, 14 FCC Rcd 9605, 9610 (1999); PJB Communications, 7 FCC
Rcd at 2089.
See PJB Communications, 7 FCC Rcd at 2089 (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,
24389 (2000), recons. denied, 16 FCC Rcd 10023, 10025 (2001) (forfeiture
not deemed excessive where it represented approximately 7.9 percent of the
violator's gross revenues); Hoosier Broadcasting Corporation, 15 FCC Rcd
8640, 8641 (Enf. Bur. 2002) (forfeiture not deemed excessive where it
represented approximately 7.6 percent of the violator's gross revenues).
In this case, the forfeiture represents a percentage within the range of
PJB Communications of Virginia, Inc., Local Long Distance, Inc., and
Hoosier Broadcasting Corp.
See 47 U.S.C. S: 503(b), 47 C.F.R. S: 1.80.
See 47 U.S.C. S: 399b; 47 C.F.R. S: 73.503(d).
See 47 C.F.R. S: 1.80.
See 47 U.S.C. S: 504(a).
Federal Communications Commission DA 09-1569
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Federal Communications Commission DA 09-1569