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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-09-IH-0615
In the Matter of
) FRN: 0005086509
CONNECTICUT RADIO FELLOWSHIP, INC.
) NAL/Account No.:
Licensee of WIHS(FM), Middletown, 201032080012
Connecticut )
Facility ID No. 13634
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: April 1, 2010 Released: April 1, 2010
By the Chief, Investigations and Hearings Division, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we
propose a monetary forfeiture in the amount of one thousand two
hundred fifty dollars ($1,250) against Connecticut Radio Fellowship,
Inc. ("CRFI" or the "Licensee"), licensee of Station WIHS(FM),
Middletown, Connecticut ("WIHS" or the "Station"), for its apparent
willful and repeated violation of Sections 73.3526(c)(1) and (e)(5) of
the Commission's rules. As discussed below, we find that CRFI violated
the public inspection file requirements by failing to maintain a copy
of its articles of incorporation and by-laws or, alternatively, a list
of these documents, in the Station's local public inspection file, and
by failing to provide requested copies within a reasonable amount of
time.
II. BACKGROUND
2. On April 20, 2009, the Enforcement Bureau (the "Bureau") received a
complaint (the "Complaint") alleging that on March 24, 2009, CRFI
failed to provide WIHS's public file "upon request." The Complainant
claims that he was particularly interested in obtaining "a copy of the
Station's by-laws," but alleges that they were "unavailable at the
time" of his visit. The Complainant also alleges that he submitted a
written request for the by-laws on the same date, but that as of April
8, 2009, he had not received anything from CRFI.
3. On May 13, 2009, and July 31, 2009, we sent letters of inquiry to CRFI
directing it to respond to the allegations in the Complaint. In its
response, CRFI concedes that the Complainant requested a copy of its
by-laws and that station personnel were unable to locate the document
at the time it was requested, yet asserts that it believes it
otherwise complied with the Commission's public file requirements. In
support of its assertion, CRFI offers the following explanations: (1)
the reason the by-laws were missing was that they "were being
reviewed," and their exclusion was inadvertent; (2) the file had been
independently reviewed under the Alternative Broadcast Inspection
Program; (3) a copy of the by-laws and articles were placed in the
public file as soon as the Station's attorney recommended it; and
finally, (4) the delay in mailing a copy of the documents to the
Complainant was merely an oversight. Below, we respond to each of
these explanations in turn.
III. DISCUSSION
4. Under Section 503(b)(1) of the Communications Act of 1934, as amended
(the "Act"), any person who is determined by the Commission to have
willfully or repeatedly failed to comply with any provision of the Act
or any rule, regulation, or order issued by the Commission shall be
liable to the United States for a forfeiture penalty. Section
312(f)(1) of the Act defines willful as "the conscious and deliberate
commission or omission of [any] act, irrespective of any intent to
violate" the law. The legislative history to Section 312(f)(1) of the
Act clarifies that this definition of willful applies to both Sections
312 and 503(b) of the Act, and the Commission has so interpreted the
term in the Section 503(b) context. The Commission may also assess a
forfeiture for violations that are merely repeated, and not willful.
"Repeated" means that the act was committed or omitted more than once,
or lasts more than one day. In order to impose such a penalty, the
Commission must issue a notice of apparent liability, the notice must
be received, and the person against whom the notice has been issued
must have an opportunity to show, in writing, why no such penalty
should be imposed. The Commission will then issue a forfeiture if it
finds, by a preponderance of the evidence, that the person has
willfully or repeatedly violated the Act or a Commission rule. As
described in greater detail below, we conclude under this procedure
that CRFI is apparently liable for a forfeiture in the amount of one
thousand two hundred fifty dollars ($1,250) for its apparent willful
and repeated violations of Sections 73.3526(c)(1) and (e)(5) of the
Commission's rules.
5. Under Section 73.3526, licensees must maintain a public inspection
file and allow public access to it during regular business hours. In
addition, the public inspection file must contain, inter alia,
ownership reports and related materials, such as articles of
incorporation and by-laws. In lieu of keeping these documents in the
public inspection file, licensees may instead keep an up-to-date list
of such contracts in the file. Furthermore, as provided in the rule,
"[r]equests for copies shall be fulfilled within a reasonable period
of time, which generally should not exceed 7 days."
6. In this case, we find that CRFI violated Section 73.3526 of the
Commission's rules by failing to maintain a complete public inspection
file. The rule requires that certain corporate documents, such as
by-laws and articles of incorporation, be maintained in a station's
public inspection file. CRFI acknowledges that it did not regularly
keep these documents in its file until sometime after March 24, 2009.
CRFI's explanation that, at the time of the request, the by-laws were
under review due to questions arising from personnel actions, is not
exculpatory. Even accepting that explanation as true, CRFI's public
file should have contained current copies of the Licensee's by-laws
and articles of incorporation or, alternatively, contained a list of
such documents.
7. CRFI also argues that it did not violate the rules because it relied
on the alternative inspection program offered by its state
broadcasters' association. In particular, CRFI notes that the
deficiencies in its public file were not brought to its attention
during "three FCC sanctioned Alternate Broadcast Inspection Program
inspections performed by independent inspectors over the past nine
years." We reject this argument. The Commission has long held that
Licensees are responsible for compliance with Commission rules and may
not rely on the advice or actions of others to shield it from
liability.
8. Next, CRFI appears to suggest that it should be shielded from
liability because it took corrective action. In particular, CRFI notes
that, after it was unable to locate the by-laws upon the Complainant's
request for inspection, it sought advice of counsel and was advised to
place a copy of the document in the public file. CFRI claims that it
then placed both the articles of incorporation and the by-laws in the
file. Despite CRFI's efforts in this regard, the rule nonetheless had
already been violated at the time the Complainant visited the station
because the documents were missing from the public file. It is well
established that such remedial actions do not absolve licensees of
liability. Consequently, we find that this argument is without merit.
9. Finally, CRFI explains that the delay in providing the Complainant
with the documents he requested from the public file was "an
oversight." The record reflects that the Complainant requested CRFI's
by-laws in person and by writing on March 24, 2009, and again in
writing on May 5, 2009, before the document request was finally
fulfilled on May 6, 2009. Section 73.3526 requires that copies of
requested documents be provided "within a reasonable period of time,
which generally should not exceed 7 days." CRFI's explanation that the
delay was caused by inadvertence or employee oversight is inadequate.
As noted above, inadvertence or employee oversight do not excuse CRFI
from liability for its failure to follow Commission rules.
10. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the rules, the base forfeiture for violations of the public
inspection file rules is $10,000. In assessing the monetary forfeiture
amount, we must also take into account the statutory factors set forth
in Section 503(b)(2)(E) of the Act, which include the nature,
circumstances, extent, and gravity of the violations, and with respect
to the violator, the degree of culpability, and history of prior
offenses, ability to pay, and other such matters as justice may
require. Because the WIHS public inspection file was missing only a
subset of the required items, a downward adjustment of the base
forfeiture amount for this violation to $1,250 is warranted. Applying
the Forfeiture Policy Statement, Section 1.80, and the statutory
factors to the instant case, we conclude that Connecticut Radio
Fellowship, Inc. willfully and repeatedly violated Section 73.3526 of
the Commission's rules and is apparently liable for a forfeiture in
the amount of one thousand two hundred fifty dollars ($1,250).
IV. ORDERING CLAUSES
11. ACCORDINGLY, pursuant to Section 503(b) of the Communications Act of
1934, as amended, and Sections 0.111, 0.311, and 1.80 of the
Commission's rules, Connecticut Radio Fellowship, Inc., licensee of
Station WIHS(FM), Middletown, Connecticut, IS HEREBY NOTIFIED OF ITS
APPARENT LIABILITY FOR A FORFEITURE in the amount of one thousand two
hundred fifty dollars ($1,250) for willfully and repeatedly violating
Sections 73.3526(c)(1) and (e)(5) of the Commission's rules.
12. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's
rules that within thirty days of the release of this Notice,
Connecticut Radio Fellowship, Inc. SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
13. 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. Connecticut Radio Fellowship, Inc., 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 Guy.Benson@fcc.gov.
14. The response, if any, shall be mailed to Hillary S. DeNigro, Chief,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, 445 12th Street, S.W, Room 4-C330,
Washington DC 20554 and SHALL INCLUDE the NAL/Acct. No. referenced
above. To the extent practicable, the response, if any, shall also be
sent via e-mail to Hillary.DeNigro@fcc.gov, Ben.Bartolome@fcc.gov,
Kenneth.Scheibel@fcc.gov, and Guy.Benson@fcc.gov.
15. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the respondent submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices ("GAAP"); or (3) some other reliable and
objective documentation that accurately reflects the respondent's
current financial status. Any claim of inability to pay must
specifically identify the basis for the claim by reference to the
financial documentation submitted.
16. IT IS FURTHER ORDERED that the above-referenced complaint IS GRANTED
to the extent indicated herein and IS OTHERWISE DENIED, and the
instant complaint proceeding IS HEREBY TERMINATED.
17. IT IS FURTHER ORDERED that a copy of this Notice shall be sent, by
Certified Mail/Return Receipt Requested, to Connecticut Radio
Fellowship, Inc., 1933 Main Street, Middletown, Connecticut 06457; to
its counsel, Howard M. Wood, III, Phelon, FitzGerald, & Wood, P.C.,
773 Main Street, Manchester, Connecticut 06040; and to the
Complainants.
FEDERAL COMMUNICATIONS COMMISSION
Hillary S. DeNigro
Chief, Investigations and Hearings Division
Enforcement Bureau
See 47 C.F.R. S: 73.3526(c)(1), (e)(5).
See Letter to Federal Communications Commission, Investigations and
Hearings Division, dated April 8, 2009 ("Complaint"). Although multiple
complainants supported the letter, the events recited therein relate only
to a single individual's (the "Complainant") visit to the Station. We
subsequently received an additional complaint from another individual
containing similar allegations against CRFI. See Letter to Kenneth M.
Scheibel, Jr., Assistant Chief, Investigations and Hearings Division,
Enforcement Bureau, Federal Communications Commission, dated September 7,
2009 (the "Second Complaint"). The Second Complaint reiterates matters
under investigation as a result of the April 8, 2009, Complaint.
Complaint at 1. Although the Complainant alleges generally that CRFI
failed "to provide [the] public file upon request," it appears, in
context, that this only refers to a portion of the file containing CRFI's
corporate information. Id.
Id. The Complainant argues that the Station was required to keep a copy or
list of this document, among others, as part of the ownership report and
related materials required to be kept in the Station's public inspection
file.
See id.
See Letters from Kenneth M. Scheibel, Jr., Assistant Chief, Investigations
and Hearings Division, Enforcement Bureau, Federal Communications
Commission to Connecticut Radio Fellowship, Inc., dated May 13, 2009
("First LOI") and July 31, 2009 ("Second LOI").
See Letter from Howard M. Wood, III, Attorney, Phelon, FitzGerald, & Wood,
P.C. to Anjali K. Singh, Attorney Advisor, Investigations and Hearings
Division, Enforcement Bureau, Federal Communications Commission, dated May
27, 2009 at 5 ("First LOI Response"). Sworn affidavits were provided for:
G.J. Gerard (General Manager and Chief Engineer for the Station), Robert
West (Manager for the Station), Paul Kretschmer (Operations Manager for
the Station), William Bacon (President of CRFI), and Tina Clegg (Office
Assistant for the Station). See Letter from Howard M. Wood, III, Attorney,
Phelon, FitzGerald, & Wood, P.C. to Anjali K. Singh, Attorney Advisor,
Investigations and Hearings Division, Enforcement Bureau, Federal
Communications Commission, dated August 4, 2009 at attachments ("Second
LOI Response").
First LOI Response at 6.
See id. at 4.
See id. at 6.
See id.
See 47 U.S.C. S: 503(b)(1)(B); 47 C.F.R. S: 1.80(a)(1).
47 U.S.C. S: 312(f)(1).
See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).
See, e.g., Southern California Broadcasting Co., Memorandum Opinion and
Order, 6 FCC Rcd 4387, 4388 P: 5 (1991), recons. denied, 7 FCC Rcd 3454
(1992).
See, e.g., Callais Cablevision, Inc., Grand Isle, Louisiana, Notice of
Apparent Liability for Monetary Forfeiture, 16 FCC Rcd 1359, 1362 P: 10
(2001) ("Callais Cablevision") (issuing a Notice of Apparent Liability
for, inter alia, a cable television operator's repeated signal leakage).
Southern California Broadcasting Co., 6 FCC Rcd at 4388 P: 5; Callais
Cablevision, Inc., 16 FCC Rcd at 1362 P: 9.
See 47 U.S.C. S: 503(b); 47 C.F.R. S: 1.80(f).
See, e.g., SBC Communications, Inc., Forfeiture Order, 17 FCC Rcd 7589,
7591 P: 4 (2002) (forfeiture paid).
See 47 C.F.R. S: 73.3526(c)(1), (e)(5).
See 47 C.F.R. S: 73.3526 (requiring licensees of commercial broadcast
stations to maintain public inspection files with specific contents,
including ownership reports and related materials).
See 47 C.F.R. S:S: 73.3613(b), 73.3615(a)(4)(i), 73.3526(e)(5); Review of
the Commission's Rules Regarding the Main Studio and Local Public
Inspection Files of Broadcast Television and Radio Stations, Report and
Order, 13 FCC Rcd 15691, 15713 P: 50 (1998) ("Main Studio and Local Public
Inspection Files Report and Order"), stayed, Order, 13 FCC Rcd 18174
(1998), affirmed in pertinent part, 14 FCC Rcd 11113 (1999).
See 47 C.F.R. S: 73.3526(e)(5).
47 C.F.R. S: 73.3526(c)(1).
See 47 C.F.R. S: 73.3526(e)(5); Main Studio and Local Public Inspection
Files Report and Order, 13 FCC Rcd at 15713 P: 50.
See First LOI Response at 4; Second LOI Response at Bacon Affidavit.
Although the record does not reflect precisely how long the ownership
documents were missing from the Station's file, under Commission
precedents, any omissions longer than one day are deemed repeated. See
Section 47 U.S.C. S: 312(f)(2) (defining "repeated" as "the commission or
omission of [any] act more than once or, if such commission or omission is
continuous, for more than one day."); Southern California Broadcasting
Co., 6 FCC Rcd at 4388 P: 5 (applying this definition of "repeated" to
Sections 312 and 503(b) of the Act).
See First LOI Response at 6. See, e.g., Chesterman Communications of
Jamestown, Inc., Forfeiture Order, 24 FCC Rcd 2931, 2932 P: 6 (Media Bur.,
Audio Div. 2009) (citing PJB Communications of Virginia, Inc., Memorandum
Opinion and Order, 7 FCC Rcd 2088 (1992)); Southern California
Broadcasting Co., 6 FCC Rcd at 4387 P: 3 (stating that "inadvertence . . .
is at best, ignorance of the law, which the Commission does not consider a
mitigating circumstance").
CRFI does not explain why it could not have used copies, or replaced the
originals with copies, when conducting the review of its bylaws.
See First LOI Response at 5-6.
Id. The Station provides a copy of its most recent "Certificate of
Compliance" issued by the Connecticut Broadcasters Association as part of
the Alternative Broadcast Inspection Program. See id. at Attachment E.
See, e.g., Standard Communications Corp., Memorandum Opinion and Order, 1
FCC Rcd 358 (1986) (assessing $9,000 forfeiture for public file rule
violation and finding that inadvertence, including failure to discover
deficiencies through alternative inspection program by state broadcasters'
association, does not excuse licensee from liability).
See First LOI Response at 6.
See id.
See Second LOI Response and attached Affidavit of William Bacon (noting
that after consultation with CRFI's attorney, copies of the articles of
incorporation and by-laws were placed in the public file).
See, e.g., Capstar TX Limited Partnership (WKSS(FM)), Notice of Apparent
Liability, 20 FCC Rcd 10636, 10640 P: 9 (Enf. Bur. 2005) (forfeiture paid)
(finding remedial efforts undertaken after complaint lodged not
mitigating) (citing AT&T Wireless Services, Inc., Notice of Apparent
Liability, 17 FCC Rcd 21866, 21871 (2002); KVGL, Inc., Memorandum Opinion
and Order, 42 FCC 2d 258, 259 (1973)).
First LOI Response at 6.
See Second LOI Response at Bacon Affidavit (attached Letter to Board of
Directors, Connecticut Radio Fellowship, Incorporated, dated March 24,
2009).
See First LOI Response at 6.
47 C.F.R. S: 73.3526(c)(1).
See Second LOI Response at Bacon Affidavit.
See supra note 27 (citing cases).
See Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules
to Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087 (1997), recons.
denied, 15 FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
See 47 U.S.C. S: 503(b)(2)(E).
See JMK Communications, Memorandum Opinion and Order, 21 FCC Rcd 1427
(Enf. Bur. 2006) (attributing $1,250 of total forfeiture to missing
ownership document) (citing Community Broadcasting, Notice of Apparent
Liability, NAL/Acct. No. 200332560019 (Enf. Bur. Kansas City Office rel.
March 11, 2003) (imposing $1,250 for missing ownership report in public
file)). For purposes of deciding the proposed forfeiture amount, we are
treating missing articles of incorporation and by-laws the same as missing
ownership reports because they are all related materials. See paragraph 5,
supra.
See 47 C.F.R. S: 73.3526(c)(1), (e)(5).
For purposes of the forfeiture proceeding initiated by this NAL, CRFI
shall be the only party to this proceeding.
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Federal Communications Commission DA 10-586
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Federal Communications Commission DA 10-586