Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
R-S Broadcasting Company, Inc. ) File Number: EB-08-CF-0311
Licensee of Radio Station WCWV ) NAL/Acct. No.: 200932340002
Facility ID # 54368 ) FRN: 0009053117
Summersville, West Virginia )
)
FORFEITURE ORDER
Adopted: January 7, 2010 Released: January 11, 2010
By the Regional Director, Northeast Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of five thousand dollars ($5000) to R-S Broadcasting
Company, Inc. ("R-S Broadcasting"), licensee of FM station WCWV, in
Summersville, West Virginia, for willfully and repeatedly violating
Section 73.3526(e)(12) of the Commission's Rules ("Rules") by failing
to maintain radio issues/programs lists in the station's public
inspection file. In this Order, we consider R-S Broadcasting's
arguments that the violation occurred as a result of oversight by new
management, and that the forfeiture should be reduced because of R-S
Broadcasting's inability to pay.
II. BACKGROUND
2. On August 15, 2008, agents conducted an inspection at WCWV's main
studio in Summersville, WV with the station's owner. The agents
reviewed the contents of the public inspection file and found that the
station did not have any quarterly issues/programs lists for the
current license period, which began in 2003.
3. On June 5, 2009, the Columbia Office issued a NAL in the amount of
$10,000 to R-S Broadcasting, finding that they apparently willfully
and repeatedly violated Section 73.3526(e)(12) of the Rules by
failing to maintain quarterly issues/programs list in the WCWV's
public inspection file. R-S Broadcasting filed a response to the NAL
on June 18, 2009. In its response, R-S Broadcasting does not dispute
the violation, but claims that the failure to maintain the
issues/programs lists was not willful, but merely an oversight by new
management that took over in September 2006. R-S Broadcasting further
claims that the forfeiture amount should be reduced because of R-S
Broadcasting's demonstrated inability to pay.
III. DISCUSSION
4. The proposed 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 ("Forfeiture
Policy Statement"). In examining R-S Broadcasting's response, 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 other such matters as justice may
require.
5. Section 73.3526(e)(12) of the Rules requires AM and FM broadcast
licensees to place in their public inspection file, for each quarter,
a list of programs that have provided the station's most significant
treatment of community issues during the preceding three month period.
R-S Broadcasting is required to maintain in WCWV's public inspection
file all quarterly radio issues/programs lists since the grant date of
the latest WCWV renewal application, which occurred on September 25,
2003. On August 15, 2008, agents inspection WCWV's public inspection
file and found that the most recent quarterly issues/programs list was
from 2002.
6. In its response to the NAL, R-S Broadcasting does not dispute that it
did not maintain issues/programs lists for WCWV. Instead, R-S
Broadcasting argues that the violation was not willful because it was
merely an oversight that resulted from a change in management that
took place in September 2006. We do not find this argument persuasive.
While we do not doubt that the station's new management faced many
challenges, we believe that the almost two years between new
management taking over in September 2006 and the station inspection in
August 2008 was more than enough time to come into compliance with the
Commission's public inspection file requirements. Moreover, Section
312(f)(1) of the Act, which applies to Section 503(b) of the Act,
provides that "[t]he term `willful,' when used with reference to the
commission or omission of any act, means the conscious and deliberate
commission or omission of such act, irrespective of any intent to
violate any provision of this Act ...."
7. R-S Broadcasting also asks that the forfeiture amount be reduced
because of its inability to pay. To support this claim, R-S
Broadcasting supplies the last three years of tax records. In
analyzing a financial hardship claim, the Commission generally has
looked to gross revenues as a reasonable and appropriate yardstick in
determining whether a licensee is able to pay the assessed forfeiture.
While we find that R-S Broadcasting willfully and repeatedly violated
Section 73.3526(e)(12) of the Rules, based upon its inability to pay,
we conclude that pursuant to Section 503(b) of the Act and the
Forfeiture Policy Statement, reduction of the $10,000 forfeiture to
$5,000 is warranted.
IV. ORDERING CLAUSES
8. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), and Sections 0.111,
0.311 and 1.80(f)(4) of the Commission's Rules, R-S Broadcasting
Company, Inc., IS LIABLE FOR A MONETARY FORFEITURE in the amount of
$5,000 for willfully and repeatedly violating Section 73.3526(e)(12)
of the Rules.
9. 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. R-S Broadcasting Company, Inc.
shall also send electronic notification on the date said payment is
made to NER-Response@fcc.gov.
10. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to R-S
Broadcasting Company, Inc. at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
G. Michael Moffitt
Regional Director, Northeast Region
Enforcement Bureau
47 C.F.R. S: 73.3526(e)(12).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200932340002
(Enf. Bur., Columbia Office, released June 5, 2009).
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)(E).
47 C.F.R. S: 73.3526(e)(12). This list is known as the radio
issues/programs list.
47 U.S.C. S: 312(f)(1); See also Southern California Broadcasting Co., 6
FCC Rcd 4387, 4388 (1991). We also note that, because the violation was
repeated, we are not required to make a finding that the violation was
willful. Id. at 4388 (in issuing a forfeiture pursuant to 47 U.S.C. S:
503(b) of the Act, we are only required to find either a "willful" or
"repeated" violation).
See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088 (1992).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4),
73.3526(e)(12).
See 47 C.F.R. S: 1.1914.
Federal Communications Commission DA 10-26
2
2
Federal Communications Commission DA 10-26