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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of
)
Crocodile Broadcasting Corp., Inc File No.: EB-10-OR-0090
)
Licensee of Station KGLA(AM) NAL/Acct. No.: 201132620001
)
Gretna, LA FRN No.: 00008354904
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Facility ID Number: 14538
)
)
)
FORFEITURE ORDER
Adopted: September 7, 2011 Released: September 7, 2011
By the Regional Director, South Central Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of fourteen thousand dollars ($14,000) to Crocodile
Broadcasting Corp., Inc., ("CBC"), licensee of Station KGLA(AM),
Gretna, Louisiana, for willful and repeated violation of sections
73.1745(a) and 73.3526 of the Commission's rules ("Rules"). The noted
violations involve CBC's operation at times other than those specified
in its license and failure to maintain and make available a complete
public inspection file.
II. BACKGROUND
2. As discussed in detail in the Notice of Apparent Liability for
Forfeiture ("NAL") in this case, on October 28 and 29, 2010, agents
from the Enforcement Bureau's New Orleans Office ("New Orleans
Office") observed Station KGLA operating after 8:30 p.m. local time,
when its post-sunset authority authorizes it to operate only until
8:30 p.m. local time. On November 2, 2010, agents from the New Orleans
Office inspected the station's main studio during regular business
hours. During the inspection, the station's general manager admitted
that the station had been operating at reduced power throughout the
night for several years. In addition, the general manager produced a
public inspection file for Station KGLA that was missing a copy of the
current station authorization, the most recent license application,
and the eight most recent quarterly issues/programs lists.
3. In view of the record evidence, the NAL proposed a forfeiture of
$14,000 against the licensee for violation of sections 73.1745(a) and
73.3526 of the Rules. CBC submitted a response to the NAL
"acknowledg[ing] the occurrence of the violations cited in the NAL,"
but nevertheless requesting reduction of the proposed forfeiture based
on: (1) its mistaken belief that it was authorized to operate at
night; (2) its history of compliance with the rules; (3) its "limited
resources to devote to public file maintenance"; (4) its broadcast of
"programming responsive to community needs and interests during the
two years prior to the NAL," and (5) its post-inspection efforts to
remedy the public inspection file violation.
III. DISCUSSION
4. The proposed forfeiture amount in this case was assessed in accordance
with section 503(b) of the Communications Act of 1934, as amended
("Act"), section 1.80 of the Rules, and the Forfeiture Policy
Statement. In examining CBC'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. As discussed below, we have considered CBC's response in
light of these statutory factors and do not reduce the proposed
forfeiture.
5. 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.
6. As CBC does not deny any of the facts set forth in the NAL, we find
that CBC willfully and repeatedly violated sections 73.1745(a) and
73.3526 of the Rules by operating at times not specified in its
license and failing to maintain and make available a complete public
inspection file. Moreover, we find that CBC has failed to provide any
justification to reduce the proposed forfeiture.
7. CBC requests that "its lack of intent to violate the rules [and
operate at night without authorization] be taken into account in
mitigation." It is well established, however, that intent to violate
the law is unnecessary for a violation to be willful. Because CBC
consciously operated its station after 8:30 p.m. local time, it is
irrelevant whether it mistakenly thought it had nighttime authority.
We note that a Media Bureau letter to CBC dated only a few months
before the agents observed the nighttime operations at issue
specifically stated that Station KGLA is licensed for "daytime-only
operation." Any "misunderstanding" by CBC as to its nighttime
authority should have been cleared up at that time, yet Station KGLA
apparently persisted in its nighttime operations.
8. We also find that CBC is not entitled to a reduction based on its
history of compliance with the rules. The Commission may take into
account the duration of a violation in considering whether a licensee
has a history of overall compliance. Although CBC has not received a
prior written sanction, CBC admitted in this proceeding to operating
at night for several years, in violation of the Rules and in disregard
for the Media Bureau's denial of the licensee's request for an STA for
nighttime operation. Given the long-standing nature of this violation
and licensee's the lack of attention to the Media Bureau letter, we do
not find a reduction based on history of compliance is warranted.
9. We also reject CBC's claim that the proposed forfeiture should be
reduced based on unsupported assertions about its financial resources.
CBC states that it "is a small broadcaster whose fortunes has suffered
as a consequence of the aftermath of Hurricane Katrina, the BP oil
spill in 2010, and the recent failure of its antenna," and "has
limited resources to devote to public file maintenance." CBC does not,
however, assert that it would be unable to pay the forfeiture and
failed to produce any financial documentation to support its inability
to pay claim. As such, CBC has not demonstrated an inability to pay
the proposed forfeiture amount.
10. Finally, with regard to the public file violation, CBC states that it
has broadcast programming responsive to local needs, and that while it
admittedly failed to maintain issues/programs lists in its public
inspection file, as required by section 73.3526 of the Rules, it has
since corrected the violation. We find no basis on which to reduce the
forfeiture amount on these grounds. CBC admits that it violated
section 73.3526, and a licensee's correction of a violation after an
inspection is expected - it does not nullify or mitigate any prior
forfeitures or violations.
11. For these reasons, pursuant to section 503(b) of the Act, and in
conjunction with the Forfeiture Policy Statement, we conclude that
cancellation or reduction of the proposed $14,000 forfeiture is not
warranted.
IV. ORDERING CLAUSES
12. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the
Communications Act of 1934, as amended, and sections 0.111, 0.204,
0.311, 0.314, and 1.80(f)(4) of the Commission's Rules, Crocodile
Broadcasting Corp., Inc. IS LIABLE FOR A MONETARY FORFEITURE in the
amount of fourteen thousand dollars ($14,000) for violations of
sections 73.1745(a) and 73.3526 of the Rules.
13. 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 enforcement 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.
CBC shall also send electronic notification on the date said payment
is made to SCR-Response@fcc.gov.
14. IT IS FURTHER ORDERED that a copy of this Order shall be sent by both
First Class and Certified Mail Return Receipt Requested to Crocodile
Broadcasting Corp., Inc. at its address of record and to its counsel,
Howard M. Weiss, Fletcher, Heald & Hildreth, PLC, 1300 North 17th
Street, 11th Floor, Arlington, VA 22209.
FEDERAL COMMUNICATIONS COMMISSION
Dennis P. Carlton
Regional Director, South Central Region
Enforcement Bureau
47 C.F.R. S:S: 73.1745(a), 73.3526.
Crocodile Broadcasting Corp., Inc., Notice of Apparent Liability for
Forfeiture, 26 FCC Rcd 1173 (Enf. Bur., 2011). A comprehensive recitation
of the facts and history of this case can be found in the NAL, which is
incorporated herein by reference.
Revised Parameters for Operation under Post-Sunset Authority (PSSA),
February 28, 2007.
See Letter from Howard M. Weiss, Counsel for Crocodile Broadcasting Corp.,
Inc., to District Director, New Orleans Office, Enforcement Bureau, March
28, 2011 ("NAL Response").
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
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), recon. denied, 15 FCC Rcd 303 (1999) ("Forfeiture
Policy Statement").
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 312(f)(1).
H.R. Conf. Rep. No. 97-765, at 51 (1982) ("This provision [inserted in
section 312] defines the terms `willful' and `repeated' for purposes of
section 312, and for any other relevant section of the act (e.g., section
503) . . . . As defined[,] . . . `willful' means that the licensee knew
that he was doing the act in question, regardless of whether there was an
intent to violate the law. `Repeated' means more than once, or where the
act is continuous, for more than one day. Whether an act is considered to
be `continuous' would depend upon the circumstances in each case. The
definitions are intended primarily to clarify the language in sections 312
and 503, and are consistent with the Commission's application of those
terms . . . .").
See, e.g., Southern California Broadcasting Co., Memorandum Opinion and
Order, 6 FCC Rcd 4387, 4388 (1991), recon. denied, 7 FCC Rcd 3454 (1992)
("Southern California Broadcasting Co.").
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362 P: 10 (2001) ("Callais
Cablevision, Inc.") (proposing a forfeiture 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.
NAL Response at 2.
See supra note 10.
See Letter from Charles N. Miller, Engineer, Audio Division, Media Bureau,
to Francisco R. Montero, Esq., Fletcher, Heald & Hildreth, P.L.C., dated
July 30, 2010. In response to a request for special temporary authority
("STA"), the letter denied the request for an STA for nighttime operation,
summarizing the procedural history of Station KGLA's nighttime operations
authority and explaining that, because Station KGLA did not propose
nighttime operation in its 1988 application for a construction permit,
Station KGLA is licensed for daytime-only operation. CBC asserts that it
thought Station KGLA had nighttime authority even after July 2010 because
of the "circumstances" surrounding its 1988 permit application and its
failure to carefully read the letter from the Media Bureau. CBC
"acknowledges that this misunderstanding is that of the licensee, but asks
that its lack of intent to violate the rules be taken into account in
mitigation." See NAL Response at 2. As discussed above, it is irrelevant
whether CBC mistakenly thought it had nighttime operating authority.
Moreover, mitigating the forfeiture on these grounds would only serve to
reward CBC for its lack of attention to the terms of its station
authorization and to Commission correspondence.
See supra note 16.
See Commercial Radio Service Corp., Forfeiture Order, 16 FCC Rcd 3543,
3545 (Enf. Bur. Tech. & Pub. Safety Div., 2001) (denying a reduction for a
history of overall compliance where the licensee operated eleven
specialized mobile radio stations without authorization for five months);
LSM Radio Partners, LLC, Forfeiture Order, 25 FCC Rcd 10631 (Enf. Bur.
2010) (denying a reduction for history of overall compliance where the
licensee operated without operational Emergency Alert System equipment for
approximately 21 months).
NAL Response at 2.
See Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099 (1994)
(finding attempts to comply with licensing requirements following initial
violation are expected and do not warrant reduction or cancellation of
forfeiture); Rama Communications, Inc., Memorandum Opinion and Order, 24
FCC Rcd 4981 (Enf. Bur. 2009) (finding post-inspection correction of tower
painting, tower fencing, public inspection file and overpower operation
violations is expected and does not warrant reduction or cancellation of
forfeiture); Bethune-Cookman College, Inc.. Forfeiture Order, 24 FCC Rcd
4513 (South Central Region 2009) (finding installation of required EAS
decoder after an inspection is expected and does not warrant reduction or
cancellation of forfeiture); International Broadcasting Corporation, Order
on Review 25 FCC Rcd 1538 (2010) (finding post-inspection attempts to
paint and register antenna structure are expected and do not warrant
reduction or cancellation of forfeiture). [Switch order of cases to
reverse chronological]
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314,
1.80(f)(4), 73.1745(a), 73.3526.
47 U.S.C. S: 504(a).
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Federal Communications Commission DA 11-1505
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Federal Communications Commission DA 11-1505