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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Cumulus Licensing LLC ) File Number EB-09-PA-0271
Licensee of Station WWIZ ) NAL/Acct. No. 201132400005
Mercer, Pennsylvania ) FRN 0002834810
Facility ID # 23437 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: February 24, 2011 Released: February 25, 2011
By the District Director, Philadelphia Office, Northeast Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Cumulus Licensing LLC ("Cumulus"), licensee of Station WWIZ,
Mercer, Pennsylvania, apparently willfully and repeatedly violated
section 73.3526(e)(12) of the Commission's Rules ("Rules") by failing
to maintain and make available the quarterly issues/programs lists in
the local public inspection file. We conclude that Cumulus is
apparently liable for a forfeiture in the amount of ten thousand
dollars ($10,000).
II. BACKGROUND
2. On November 17, 2009, an agent from the Enforcement Bureau's
Philadelphia Office conducted an inspection with Station WWIZ's chief
operator and station market manager at the station's main studio in
Youngstown, Ohio. The agent reviewed the materials in WWIZ's public
inspection file and found that the station was missing nine quarterly
issues/programs lists, i.e., all quarterly issues/programs lists since
the Commission granted Station WWIZ's renewal application on June 22,
2007.
III. DISCUSSION
3. Section 503(b) of the Communications Act of 1934, as amended ("Act"),
provides that any person who willfully or repeatedly fails to comply
substantially with the terms and conditions of any license, or
willfully or repeatedly fails to comply with any of the provisions of
the Act or of any rule, regulation or order issued by the Commission
thereunder, shall be liable for a forfeiture penalty. The term
"willful" as used in section 503(b) of the Act has been interpreted to
mean simply that the acts or omissions are committed knowingly. The
term "repeated" means the commission or omission of such act more than
once or for more than one day.
4. Section 73.3526(a)(2) of the Rules requires broadcast stations to
maintain for public inspection a file containing materials listed in
that section. Section 73.3526(c)(1) of the Rules specifies that the
file shall be available for public inspection at any time during
regular business hours, and section 73.3526(e)(12) of the Rules
specifically requires licensees to place in their public inspection
file, for each calendar quarter, a list of programs that have provided
the station's most significant treatment of community issues during
the preceding three-month period. This list is known as the
issues/programs list and must include a brief narrative describing
what issues were given significant treatment and the programming that
provided this treatment. The description of the programs must include,
but shall not be limited to, the time, date, duration, and title of
each program in which the issue was treated. Copies of the
issues/programs list must be retained in the public inspection file
until final action has been taken on the station's next license
renewal application. On November 17, 2009, an agent reviewed Station
WWIZ's public inspection file and found that it was missing nine
quarterly issues/programs lists. Accordingly, based on the evidence
before us, we find that Cumulus apparently willfully and repeatedly
violated section 73.3526(e)(12) of the Rules by failing to maintain
the issues/programs lists and make them available in Station WWIZ's
public inspection file.
5. Pursuant to the Commission's Forfeiture Policy Statement, and section
1.80 of the Rules, the base forfeiture amount for violation of the
public file rule 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. Applying the Forfeiture Policy Statement, section 1.80 of the
Rules, and the statutory factors to the instant case, we conclude that
Cumulus is apparently liable for a forfeiture in the amount of ten
thousand dollar ($10,000) for its failure to maintain any quarterly
issues/programs lists during the current license term.
IV. ORDERING CLAUSES
6. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the
Communications Act of 1934, as amended, and sections 0.111, 0.311,
0.314 and 1.80 of the Commission's Rules, Cumulus Licensing LLC is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of ten thousand dollars ($10,000) for violation of section
73.3526(e)(12) of the Rules.
7. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the
Commission's Rules within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, Cumulus Licensing, LLC
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
8. Payment of the forfeiture must be made by credit card, check or
similar instrument, payable to the order of the Federal Communications
Commission. The payment must include the 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. 20554.8 If you have questions, please contact the
Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov. If payment is made, Cumulus Licensing, LLC shall
send electronic notification on the date said payment is made to
NER-Response@fcc.gov,
9. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
sections 1.80(f)(3) and 1.16 of the Rules. The written statement, if
any, must be mailed to Federal Communications Commission, Enforcement
Bureau, Northeast Region, Philadelphia Office, One Oxford Valley
Building, Suite 404, 2300 East Lincoln Highway, Langhorne,
Pennsylvania 19047 and must include the NAL/Acct. No. referenced in
the caption. The statement should also be emailed to
NER-Response@fcc.gov.
10. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner 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 petitioner'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.
11. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Cumulus Licensing, LLC at 3280
Peachtree Road, N.W., Suite 2300, Atlanta, Georgia 30305.
FEDERAL COMMUNICATIONS COMMISSION
Gene J. Stanbro
District Director
Philadelphia District Office
Northeast Region
Enforcement Bureau
47 C.F.R. S: 73.3526(e)(12).
See BRH-20060403BFK, granted June 22, 2007.
Section 312(f)(1) of the Act, 47 U.S.C. S: 312(f)(1), which applies to
violations for which forfeitures are assessed under 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 or any rule or regulation of the Commission
authorized by this Act...." See Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387 (1991); recon. denied, 7 FCC
Rcd 3454 (1992)
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under Section 503(b) of
the Act, provides that "[t]he term 'repeated', when used with reference to
the commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day."
47 C.F.R. S: 73.3526(a)(2).
47 C.F.R. S: 73.3526(c)(1).
47 C.F.R. S: 73.3526(e)(12).
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) ("Forfeiture Policy Statement"), recon. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80,
73.3526(e)(12).
8 See 47 C.F.R. S: 1.1914.
(...continued from previous page)
Federal Communications Commission DA 11-352
2
Federal Communications Commission DA 11-352