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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
Lazer Licenses, LLC ) File Number: EB-09-SD-0156
Licensee of Station KSSB(FM) ) NAL/Acct. No.: 201132940004
Calipatria, California ) FRN: 0015149842
Facility ID # 52469 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: May 16, 2011 Released: May 18, 2011
By the District Director, San Diego District Office, Western Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Lazer Licenses, LLC ("Lazer"), licensee of FM radio station KSSB,
in Calipatria, California, apparently willfully and repeatedly
violated section 73.3526 of the Commission's rules by failing to
maintain a complete public inspection file. We conclude, pursuant to
section 503(b) of the Communications Act of 1934, as amended ("Act"),
that Lazer is apparently liable for a forfeiture in the amount of
eight thousand dollars ($8,000).
II. BACKGROUND
2. On April 21, 2010, agents from the Enforcement Bureau's San Diego
Office inspected the main studio location of Station KSSB, which is
located at 251West Main Street, Suite O, Brawley, California. The
agents reviewed the content of Station KSSB's public inspection file
with the general manager of the station and discovered that required
issues and programs lists were missing for all quarters of 2007, the
second, third, and fourth quarters of 2008, the first quarter of 2009,
and the first quarter of 2010. A San Diego agent telephoned the
general manager on April 28, 2010 to confirm the missing issues and
programs lists, but the general manager advised that she was not
familiar with the documents and would have her manager contact the
agent later. The San Diego agent did not receive a follow-up call from
any representative of Station KSSB.
3. On May 25, 2010, San Diego agents returned to the Station KSSB and
reexamined the contents of Station KSSB's public inspection file and
discovered that, other than the issues/programs lists for the second
and third quarters of 2007, the above lists remained missing. However,
during this inspection, while the agents were examining the file
contents, copies of the issues/programs lists for the first quarter of
2009 and the first quarter of 2010 were electronically sent from
Lazer's corporate offices and printed out to be placed into the public
inspection file.
III. DISCUSSION
4. 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. 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 section
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.
The term "repeated" means the commission or omission of such act more
than once or for more than one day.
5. Section 73.3526(a)(2) of the Commission's rules requires that every
licensee of a commercial AM or FM station shall maintain a public
inspection file containing the material relating to that station, as
described in section 73.3526(e) of the rules. Specifically, section
73.3526(e)(12) of the rules 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 radio issues/programs list and copies must be maintained
in the file until final action has been taken on the station's next
renewal application. Further, as required by section 73.3526(b), the
public inspection file shall be maintained at the station's main
studio.
6. During the two inspections performed by the San Diego agents, the
public inspection file for Station KSSB was missing quarterly radio
issues/program lists for the first and fourth quarters of 2007, the
second, third, and fourth quarters of 2008, the first quarter of 2009,
and the first quarter of 2010, although the lists for these final two
quarters were produced during the second inspection. During the first
inspection, Station KSSB was also missing quarterly issues/programs
lists for the second and third quarters of 2007. Consequently, Lazer
failed to maintain a complete public inspection file at the Station
KSSB main studio. All of the noted quarters are within the current
license term, which began on January 12, 2006. Based on the evidence
before us, including the fact that the public inspection file was
missing multiple quarters of material, we find that Lazer apparently
willfully and repeatedly violated section 73.3526 of the rules by
failing to ensure a complete public inspection file was properly
maintained and made available at the Station KSSB main studio.
7. 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, any history of prior
offenses, ability to pay, and other such matters as justice may
require. Because the Station KSSB public inspection file was partially
complete at the time of both inspections, a reduction in the base
forfeiture amount is appropriate. We also take into account, however,
the fact that Lazer had not fully corrected its violation by the time
the San Diego agents made a second inspection. Applying the Forfeiture
Policy Statement, section 1.80, and the statutory factors to the
instant case, we conclude that Lazer is apparently liable for a
forfeiture in the amount of $8,000.
IV. ORDERING CLAUSES
8. 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 of the Commission's rules, Lazer Licenses, LLC,
is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of eight thousand dollars ($8,000) for violation of section
73.3526 of the rules.
9. 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, Lazer Licenses, LLC,
SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the proposed
forfeiture.
10. 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. Lazer Licenses, LLC, will also
send electronic notification on the date said payment is made to
WR-Response@fcc.gov.
11. 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 must
be mailed to Federal Communications Commission, Enforcement Bureau,
Western Region, San Diego Office, 4542 Ruffner Street - Suite 370, San
Diego, CA 92111 and must include the NAL/Acct. No. referenced in the
caption. An electronic copy shall be sent to WR-Response@fcc.gov.
12. 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.
13. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent both by Certified Mail, Return Receipt
Requested, and by regular mail, to Lazer Licenses, LLC, 200 South A
Street, Suite 400, Oxnard, CA, 93030.
FEDERAL COMMUNICATIONS COMMISSION
James T. Lyon
District Director
San Diego District Office
Western Region
Enforcement Bureau
47 C.F.R. S: 73.3526.
47 U.S.C. S: 503(b).
47 U.S.C. S: 503(b).
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., Application for Review of 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.
47 C.F.R. S: 73.3526(a)(2).
47 C.F.R. S: 73.3526(e)(12).
47 C.F.R. S: 73.3526(b).
Lazer became the licensee of Station KSSB on September 22, 2006. See File
No. BALH-20051208ADX, granted July 31, 2006, consummated September 22,
2006.
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).
The Station KSSB public inspection file was missing, inter alia, the
issues/programs lists for the second and third quarters of 2007 at the
time of the first inspection. The Station's public inspection file
contained these two lists at the time of the second inspection, but the
other noted issues/programs lists remained missing from the file. See
supra P:P: 2-3.
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.204, 0.311, 0.314, 1.80,
73.3526.
See 47 C.F.R. S: 1.1914.
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Federal Communications Commission DA 11-886
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Federal Communications Commission DA 11-886