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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
)
Pacific Empire Radio
Corporation ) File No.: EB-FIELDWR-12-00002389
Licensee of: ) NAL/Acct. No.: 201232920001
FRN: 0006196612
Station KLBM, La Grande, Oregon )
Facility ID Nos.: 35047, 24794
Station KBKR, Baker, Oregon )
24796, 24795
Station KUBQ, La Grande, Oregon )
164224
Station KKBC-FM, Baker, Oregon )
Station KRJT, Elgin, Oregon )
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: May 21, 2012 Released: May 22, 2012
By the Resident Agent, Portland Resident Agent Office, Western Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that Pacific Empire Radio Corporation (Pacific Empire),
licensee of Station KLBM, La Grande, Oregon, Station KBKR, Baker,
Oregon, Station KUBQ, La Grande, Oregon, Station KKBC-FM, Baker,
Oregon and Station KRJT, Elgin, Oregon (Stations), apparently
willfully and repeatedly violated Section 73.3526(e)(12) of the
Commission's rules (Rules), by failing to retain multiple issues and
programs lists in the local public inspection file for each of the
Stations. We conclude that Pacific Empire is apparently liable for a
forfeiture in the amount of twenty five thousand dollars ($25,000).
In addition, we direct Pacific Empire to submit, no later than thirty
(30) calendar days from the date of this NAL, a statement signed under
penalty of perjury stating that Pacific Empire is now in compliance
with Section 73.3526 of the Rules.
II. BACKGROUND
2. The main studios of the Stations are co-located at 2510 Cove Avenue,
La Grande, Oregon. On August 11, 2011, an agent from the Enforcement
Bureau's Portland Resident Agent Office (Portland Office) conducted an
inspection of the Stations. The agent reviewed the Stations' public
inspection files and found that the files did not contain
issues/programs lists for twelve consecutive quarters for any of the
Stations. Specifically, each of the files was missing issues/programs
lists from the third quarter of 2008 through the second quarter of
2011.
3. On September 8, 2011, the Portland Office sent a Letter of Inquiry
(LOI) to Pacific Empire. In its reply to the LOI, Pacific Empire
stated that "[e]ach [of the Stations] was missing the same issues and
programs [lists] from July 2008 to August 11, 2011 due to the lack of
transparency between new management and outgoing management. In this
process the files were either misplaced or missing altogether."
Pacific Empire also stated that it had developed a timeline with a
completion date of October 15, 2011, to ensure that the
issues/programs lists for each of the Stations are complete and that
as of the date of the LOI Response, it had completed the
issues/programs lists from January 2011 through August 2011 for all of
the Stations.
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 repeatedtly 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 monetary 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. The term "repeated" means the commission or omission
of such act more than once or for more than one day.
A. Failure to Retain the Issues and Programs Lists in the Public
Inspection File
5. 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 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 (known as the issues/programs list). The
issues/programs lists must include "a brief narrative describing what
issues were given significant treatment and the programming that
provided this treatment," including, but not 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.
6. During an inspection conducted on August 11, 2011, an agent from the
Portland Office found that 12 consecutive issues and programs lists,
from the third quarter of 2008 through the second quarter of 2011,
were missing from public inspection files of each of the Stations.
Pacific Empire admitted to the Portland Office that the lists were
either missing or misplaced due to changes in management. Based on
the evidence before us, we find that Pacific Empire apparently
willfully and repeatedly violated Section 73.3526(e)(12) of the Rules
by failing to maintain the Stations' issues/programs lists and make
them available in the Stations' public inspection files.
B. Proposed Forfeiture Amount and Reporting Requirement
7. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for violating of the
public file rules is $10,000 for each radio station. 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. Applying the Forfeiture Policy
Statement, Section 1.80 of the Rules, and the statutory factors to the
instant case, we also take into account the number of Stations
involved, the fact that the Stations' public inspection files were
partially complete, and that the missing issues/programs lists would
have been substantially similar given the proximity of the communities
served by the Stations. We also take into account Pacific Empire's
history of compliance with the Rules. We conclude that Pacific Empire
is apparently liable for a total forfeiture in the amount of
$25,000.
8. We also direct Pacific Empire to submit a statement under penalty of
perjury and signed by an officer or director of Pacific Empire stating
that they are now in full compliance with Section 73.3526 of the
Rules. This statement must be provided to the Portland Office at the
address listed in paragraph 11 within thirty (30) calendar days of the
release date of this Notice of Apparent Liability for Forfeiture and
Order.
IV. ORDERING CLAUSES
9. 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, Pacific Empire Radio
Corporation is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of twenty five thousand dollars ($25,000)
for violations of Section 73.3526(e)(12) of the Rules.
10. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules, within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture and Order,
Pacific Empire Radio Corporation SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
11. IT IS FURTHER ORDERED that Pacific Empire Radio Corporation SHALL
SUBMIT a written statement, as described in paragraph 8, within thirty
(30) calendar days of the release date of this Notice of Apparent
Liability for Forfeiture and Order. The statement must be mailed to
Federal Communications Commission, Enforcement Bureau, Western Region,
Portland Resident Agent Office, P.O. Box 61469, Vancouver,
Washington 98666-1469. Pacific Empire Radio Corporation shall also
e-mail the written statement to WR-Response@fcc.gov.
12. 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
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. If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk at
1-877-480-3201 or E-mail: ARINQUIRIES@fcc.gov. Pacific Empire Radio
Corporation will also send electronic notification on the date said
payment is made to WR-Response@fcc.gov.
13. 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 1.16 and 1.80(f)(3) of the Rules. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, Western
Region, Portland Resident Agent Office, P.O. Box 61469,Vancouver,
Washington 98666-1469, and include the NAL/Acct. No. referenced in the
caption. Pacific Empire Radio Corporation shall also email the written
response to WR-Response@fcc.gov.
14. 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.
15. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture and Order shall be sent by both Certified Mail, Return
Receipt Requested, and regular mail to Pacific Empire Radio
Corporation at 403 "C" Street, Lewiston, Idaho 83501.
FEDERAL COMMUNICATIONS COMMISSION
Binh Nguyen
Resident Agent
Portland Resident Agent Office
Western Region
Enforcement Bureau
47 C.F.R. S: 73.3526(e)(12).
See Letter of Inquiry from Binh Nguyen, Resident Agent, Portland Office,
Western Region, FCC Enforcement Bureau, to Pacific Empire Radio
Corporation (Sep. 8, 2011) (on file in EB-11-PO-0096, 97, 98, 99, 100).
Letter from to Pacific Empire Radio Corporation to Binh Nguyen, Resident
Agent, Portland Office, Western Region, FCC Enforcement Bureau (Sep. 16,
2011) (on file in EB-11-PO-0096, 97, 98, 99, 100) (LOI Response).
Id. at 1.
Id. at 2.
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 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), recons. denied, 7 FCC Rcd 3454 (1992).
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) (Callais
Cablevision, Inc.) (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
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." See Callais Cablevision, Inc., 16 FCC Rcd at
1362.
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).
Id.
Id.
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), recons. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
See, e.g., Wilson Broadcasting, Inc., Memorandum Opinion and Order, 22 FCC
Rcd 15963 (Enf. Bur. 2007) (affirming a forfeiture of $4,000 for each of
three co-located stations with public files missing multiple quarterly
issues/programs lists).
We note that Pacific Empire had a history of compliance with the Rules
prior to the August 11, 2011, inspection by the Portland agent. Along with
the instant NAL, this inspection resulted in Notices of Violation issued
against each of the Stations for violations of Sections 11.61(b) and
73.1870(b)(3) of the Rules, concerning Emergency Alert System logs and
Chief Operator designation. See, e.g., Pacific Empire Radio Corp., Station
KLBM, Notice of Violation, V201132920031 (rel. Sep. 8, 2011). Because
these violations were observed during the same inspection as the
violations described in this NAL, we do not believe that they negate
Pacific Empire's history of compliance prior to the inspection.
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(e)(12).
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
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Federal Communications Commission DA 12-792
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Federal Communications Commission DA 12-792