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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
In the Matter of )
Lazer Licenses, LLC )
Licensee of: )
Station KSBQ(AM) )
File Nos. EB-07-LA-111
Santa Maria, California )
EB-07-LA-112
Facility ID # 38442 )
EB-07-LA-113
Station KLMM-FM )
NAL/Acct. No. 200732900007
Morro Bay, California )
FRN: 0015079908
Facility ID # 46401 )
Station KLUN-FM )
Paso Robles, California )
Facility ID # 2243 )
)
)
)
ORDER ON REVIEW
Adopted: January 4, 2012 Released: January 5, 2012
By the Commission:
I. INTRODUCTION
1. In this Order on Review ("Order on Review"), we deny the Application
for Review filed by Lazer Licenses, LLC, ("Lazer") the licensee of
Stations KSBQ(AM), Santa Maria, California, KLMM-FM, Morro Bay,
California and KLUN-FM, Paso Robles, California, pursuant to section
1.115 of the Commission's Rules ("Rules"). Lazer seeks review of the
Enforcement Bureau's ("Bureau's") Reconsideration Order affirming an
$8,000 forfeiture against the licensee for its willful and repeated
violation of section 73.3526 of the Rules. The noted violation
concerned Lazer's failure to maintain complete public inspection files
for Stations KSBQ(AM), KLMM-FM, and KLUN-FM. For the reasons discussed
below, we deny Lazer's Application for Review.
II. BACKGROUND
2. On March 6, 2007, an agent of the Enforcement Bureau's Los Angeles
Office conducted inspections of the public inspection files for
Stations KSBQ(AM), KLMM-FM, and KLUN-FM at their main studio location
in Santa Maria, California. The agent discovered that, while the
public inspection files were partially complete, none of the stations'
public inspection files contained any issues/programs lists for dates
subsequent to their license renewals on July 28, 2005. The general
manager for the three stations could not explain why these records had
not been maintained in the public inspection files. The general
manager stated that he was fairly new in his position but was very
familiar with issues/programs list filing requirements; he advised the
agent that he would place his Office Manager in charge of maintaining
and filing these records in the public inspection files going forward.
3. On May 17, 2007, the Los Angeles Office issued a Notice of Apparent
Liability for Forfeiture in the amount of $12,000 to Lazer, finding
that Lazer apparently willfully and repeatedly failed to maintain
complete public inspection files for Stations KSBQ(AM), KLMM-FM and
KLUN-FM. On June 22, 2007, Lazer filed a response attaching sworn
declarations from station employees who asserted that the missing
issues/programs lists had been timely prepared and maintained on a
different floor of the main studio location, but could not be located
at the time of inspection because the employee who knew the files'
location was offsite at the time. Lazer also asserted that - following
its receipt of the NAL - the licensee had modified its procedures
concerning public inspection files for all of its stations. Lazer
sought cancellation of the proposed forfeiture.
4. In the Forfeiture Order, the Enforcement Bureau's Western Region
("Region") rejected these arguments, finding that the specified
issues/programs lists were not available for inspection by either the
Los Angeles agent or the public on the day of the inspection. The
Region accepted Lazer's explanation concerning its good faith
compliance efforts regarding the issues/programs lists, however, and
reduced the total proposed forfeiture from $12,000 to $8,000. The
Region found that the subsequent remedial procedures implemented by
Lazer did not entitle the licensee to further reduction in the
forfeiture amount.
5. Lazer sought reconsideration of the Forfeiture Order and once again
argued that the forfeiture should be cancelled because the
issues/programs lists had been properly maintained for the three
stations, but could not be found on the day of inspection because they
happened to be located in a different area of the main studio. Lazer
cited three Media Bureau decisions as support for its argument that
the forfeiture amount should be reduced or eliminated. Lazer also
argued that the Commission's decision in Citadel Broadcasting Company,
Inc. established a $1,000 forfeiture amount for issues/programs list
violations, because the Commission there issued a forfeiture for
$1,000 against Citadel for the violation of two missing
issues/programs lists that could not be recreated.
6. The Bureau reviewed the Media Bureau cases cited by Lazer and
distinguished each of them based on their facts. Similarly, the Bureau
distinguished the lower forfeiture amount in Citadel. While the
Commission in Citadel imposed a $1,000 forfeiture against a single
station for missing two issues/programs lists, Lazer, at the time of
the inspection, was missing a total of eighteen issues/programs lists
across the three stations. The Bureau further noted that the amount of
the forfeiture issued against Lazer was actually supported by Citadel,
because the Commission also determined in that case that another
Citadel-owned station was apparently liable for a $10,000 forfeiture
where the station admitted on its renewal application that its public
inspection file was missing a total of fifteen issues/programs lists.
Lazer subsequently sought Commission review of the Bureau's
Reconsideration Order.
III. DISCUSSION
7. In this Order on Review, we deny Lazer's Application for Review and
affirm the Bureau's Reconsideration Order. The forfeiture amount in
this case was assessed in accordance with Section 503(b)(2)(E) of the
Communications Act of 1934, as amended ("Act"), Section 1.80(b)(4) of
the Rules, and the Commission's Forfeiture Policy Statement. Pursuant
to Section 503(b)(5)(E) of the Act, the Bureau took 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. Lazer has failed to demonstrate any inconsistency between the
Bureau's action here and prior Commission cases. In its Application
for Review, Lazer effectively repeats the argument it made before the
Bureau: that an $8,000 forfeiture departs from Commission precedent,
as expressed in Citadel. We agree with the Bureau's reasoning in the
Reconsideration Order and reject Lazer's arguments for the reasons
stated therein. We note that the Commission has previously affirmed an
Enforcement Bureau decision that an incomplete public inspection file,
missing only three items, could subject a licensee to monetary
forfeitures "regardless of why or for how long the items were
missing." The Commission found no error in the Bureau's statement of
the requirement that the licensee must maintain a public inspection
file and ensure that it is complete.
8. Section 73.3526 of the Rules requires that broadcast licensees
maintain certain material in a file to be made available for public
inspection during business hours. One of the categories of documents
that must be maintained as part of the public inspection file is the
issues/programs list. These lists enable citizens to determine whether
local broadcast facilities are assessing and addressing the uniquely
local concerns and issues affecting the station's community of
license. The issues/programs lists document the station's efforts to
this end, and must be accessible and available to the public. We have
previously determined that "reasonable access to the public inspection
file serves the important purpose of facilitating citizen monitoring
of a station's operations and public interest performance, and
fostering community involvement with local stations, thus helping to
ensure that stations are responsive to the needs and interests of
their local communities." In this regard, access to the most recent
issues/programs lists allows interested citizens to review what issues
the station chose to give significant treatment, and the programming
that provided that treatment.
9. Lazer argues that a licensee is more culpable where it fails to create
the issues/programs lists, which was the basis of the forfeiture in
the Citadel case, than where, as here, it creates such lists as part
of a public inspection file, but fails to make the file available on
the day of an FCC inspection, or on the day of a request to inspect
the file by a member of the public. For an individual seeking to
review the issues/program lists, however, the harm is the same: the
licensee denies the public access to vital information regarding
whether the station is adequately addressing the local community's
concerns.
10. In the present case, Lazer failed to provide on the day of the
inspection the six most recent issues/programs lists for each of three
stations listed above. During this proceeding, the Los Angeles Office
initially proposed a forfeiture of $4,000 for each of the three
stations, for a total proposed forfeiture of $12,000. In Lazer's NAL
Response, however, the Licensee asserted under penalty of perjury that
it had the missing files on site on the day of inspection, but had not
placed them in the public inspection file. In light of Lazer's good
faith efforts to comply with the public inspection file rule, the
Western Region reduced the total forfeiture to $8,000, which was
affirmed by the Bureau. Given the importance and number of the items
missing from the public inspection files on the date of the
inspection, we find that this amount was appropriate.
11. Lazer also argues that the Bureau made an "erroneous finding as to a
material question of fact" when it noted, in the Reconsideration
Order, that "almost three months passed after the Los Angeles Office
inspection before Lazer located the missing issues and programs
lists." Lazer claims that at all times the issues/programs lists were
maintained in the main studio and that "[o]n any other day after [the
responsible Lazer employee] became aware of the March 2007 inspection,
the lists would be made available to the public; they were simply
stored in another room of the main studio."
12. We find no merit to this argument. In the Reconsideration Order, the
Bureau simply recounted what Lazer stated in its NAL Response, in
which the employee identified as responsible for compliance with
public inspection file rules states, "[o]n May 30, 2007 I personally
visited the Stations' common main studio located at 200 East Feeler
Street in Santa Maria, California. At the studio I located all of the
issues and programs lists for all three stations covering the time
periods cited in the Notice." Thus, although Lazer knew that the
missing issues/programs lists were not available as of March 5, 2007,
the date of the inspection, the licensee has conceded that the
issues/programs lists were only "located" on May 30, 2007.
13. Lazer provides no support for its claim that the missing
issues/programs lists would have been available for inspection during
the period between the inspection and its employee's visit to the main
studio nearly three months later. Indeed, the evidence points to the
contrary. Notwithstanding its knowledge that an FCC Field agent had
determined that its public inspection file was incomplete, Lazer did
not search its records for the missing information until it received
the NAL, nearly three months after the inspection. We find no error in
the Bureau noting this information in the Reconsideration Order.
Therefore, upon review of the Application for Review and the entire
record herein, we deny Lazer's application and affirm the Bureau's
Reconsideration Order.
IV. ORDERING CLAUSES
14. Accordingly, IT IS ORDERED that, pursuant to section 1.115(g) of the
Commission's Rules, Lazer Licenses, LLC's Application for Review of
the Enforcement Bureau's December 18, 2008, Reconsideration Order IS
DENIED and the Bureau's Reconsideration Order IS AFFIRMED.
15. Payment of the forfeiture ordered by the Region and affirmed by this
Order on Review shall be made in the manner provided for in section
1.80 of the Rules within 30 days of the release of this Order on
Review. If the forfeiture is not paid within the period specified, the
case may be referred to the Department of Justice for collection
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.
16. IT IS FURTHER ORDERED that this Order on Review shall be sent by
regular mail and by certified mail, return receipt requested, to Lazer
Licenses, LLC, at 200 South A Street, Suite 400, Oxnard, CA, 93030,
and to Harry C. Martin, its counsel of record, at Fletcher, Heald &
Hildreth, P.L.C., 11th Floor, 1300 North 17th St., Arlington, VA
22209.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
Application for Review, Lazer Licenses, Inc., EB-07-LA-111 et al., filed
January 14, 2009 ("Application for Review").
47 C.F.R. S: 1.115.
Lazer Licenses, LLC, Memorandum Opinion and Order, 23 FCC Rcd 18022 (Enf.
Bur. 2008) ("Reconsideration Order") (subsequent history omitted).
47 C.F.R. S: 73.3526.
Lazer Licenses, Inc., Notice of Apparent Liability for Forfeiture,
NAL/Acct. No. 200732900007 (Enf. Bur., Western Region, Los Angeles Office,
rel. May 17, 2007) ("NAL") (subsequent history omitted).
See Letter from Harry C. Martin, Esq., Counsel for Lazer Licenses, Inc.,
Fletcher, Heald and Hildreth, P.L.C., dated June 22, 2007 ("NAL
Response"). Lazer requested, and received, an extension of time to file
its NAL Response.
Id. at Declaration of Administrative Assistant, Lazer Licenses, Inc.,
dated June 22, 2007 at 2.
Lazer Licenses, Inc., Forfeiture Order, 23 FCC Rcd 2589, 2591 (Enf. Bur.,
Western Region 2008) ("Forfeiture Order") (subsequent history omitted).
Id. at 2590-91.
Id. at 2591.
Petition for Reconsideration, Lazer Licenses, Inc., EB-07-LA-111 et al.,
filed March 24, 2008 ("Petition for Reconsideration").
Petition for Reconsideration at 3-4 (citing Creek Broadcasting
Corporation, Memorandum Opinion and Order and Notice of Apparent Liability
for Forfeiture, 22 FCC Rcd 18669 (Audio Div., Media Bur. 2007) ("Creek
Broadcasting") (proposing a $1,000 forfeiture for failure to maintain a
public inspection file where a former employee of the licensee filed a
complaint stating, among other things, that numerous items were missing
from the station's public inspection file, and the licensee alleged that
the required items had been prepared and placed in the file, but were
subsequently removed from the file by the former employee when his
employment was terminated); Trustees of Davidson College, Forfeiture
Order, 20 FCC Rcd 17190 (Audio Div., Media Bur. 2005) ("Trustees of
Davidson College") (assessing a $1,000 forfeiture after the licensee
reported that several five-year-old issues/programs lists that had been
prepared and placed in its public inspection file were missing from the
file following relocation to a new building); Citicasters Licenses, L.P.,
Memorandum Opinion and Order and Notice of Apparent Liability, 22 FCC Rcd
19324 (Media Bur. 2007) ("Citicasters") (finding that one-hour delay to
access the station's public inspection file was not unreasonable where the
delay was caused by "legitimate security procedures").
Citadel Broadcasting Co. et al., Memorandum Opinion and Order and Notice
of Apparent Liability, 22 FCC Rcd 7083 (2007) ("Citadel").
Reconsideration Order, 23 FCC Rcd at 18023-25. As explained in the
Reconsideration Order, Creek Broadcasting allegedly involved third parties
misplacing or removing the public inspection file. This case involved the
actions of station employees. Id. at 18024. Trustees of Davidson College
concerned a segment of missing older files, while the Lazer stations were
missing the entire body of issues/programs lists since renewal. Moreover,
the licensee in Trustees of Davidson College disclosed the violations in
its renewal application, while Lazer's violations were discovered by an
Enforcement Bureau Field agent. Id. at 18024-25. Finally, the licensee in
Citicasters took an hour to produce the missing public file to the Field
agent due to "legitimate security procedures." Id. at 18025. The
Reconsideration Order observed, however, that Lazer never produced the
file to the agent, and only completed the file after receipt of the NAL,
nearly three months after learning of the problem. Id.
The Bureau concluded that Lazer did not have any issues/programs lists
available for periods subsequent to its most recent renewal grants for the
stations on July 28, 2005. Lazer was missing six quarters of
issues/programs lists for each station, resulting in a total of eighteen
missing issues/programs lists. Reconsideration Order, 23 FCC Rcd at 18024.
Reconsideration Order, 23 FCC Rcd at 18024.
See supra note 1.
47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S: 1.80 (b)(4).
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 U.S.C. S: 503(b)(2)(E).
Twenty-One Sound Communications, Inc., Order on Review, 23 FCC Rcd 2436,
2439 (2008) ("Twenty-One Sound").
Twenty-One Sound, 23 FCC Rcd at 2439. See also Paulino Bernal Evangelism,
Order on Review, 46 Comm. Reg. (P&F) 346, 2008 WL 4722115 at *2 (2008)
("Paulino Bernal Evangelism") (finding that a station is "obligated to
ensure that the public, including an FCC agent, is able to access the
public file during regular business hours").
47 C.F.R. S: 73.3526.
Citadel, 22 FCC Rcd at 7098 (citing Review of the Commission's Rules
Regarding the Main Studio Rule and Local Public Inspection Files of
Broadcast Television and Radio Stations, Report and Order, 13 FCC Rcd
15691, 15700 (1998)).
47 C.F.R. S: 73.3526(e)(12).
Application for Review at 5-6.
NAL Response at 1.
Application for Review at 3.
Id. at 4.
NAL Response at 1 (emphasis added).
In any event, Lazer was unable to produce the issues/programs lists during
the Field agent's inspection. Forfeiture Order, 23 FCC Rcd at 2591;
Reconsideration Order, 23 FCC Rcd at 18023. Thus, regardless of when it
"located" those lists, Lazer remains liable for failing to maintain and
make available on the date of the inspection a complete public inspection
file for each of the three stations identified above, in violation of
section 73.3526 of our Rules. See Paulino Bernal Evangelism, 2008 WL
4722115 at *2 (affirming Bureau forfeiture against licensee for public
file violations despite the licensee's claim that the file was onsite
during the Field agent inspection, but that the station employee merely
failed to produce the file because he had difficulty with English and
panicked at the arrival of the Field agent; the Commission found that "the
public file was effectively unavailable to the general public at all
times.").
47 C.F.R. S: 1.115(g).
47 U.S.C. S: 504(a).
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Federal Communications Commission FCC 12-3