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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Western Slope Communications, LLC Licensee of: Station
KRGS, Rifle, Colorado Station KRVG, Glenwood Springs, Colorado )))))))
File No.: EB-FIELDWR-12-00003820 File No.: EB-FIELDWR-12-00003822
NAL/Acct. No.: 201332800006 FRN: 0004259552 Facility ID Nos.: 71960 and
88077
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: July 9, 2013 Released: July 10, 2013
By the District Director, Denver Office, Western Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture (NAL), we find
that Western Slope Communications, LLC (Western Slope), licensee of
Station KRGS, Rifle, Colorado, and Station KRVG, Glenwood Springs,
Colorado (Stations), apparently willfully and repeatedly violated
Section 73.3526 of the Commission's rules (Rules)^ by failing to
maintain complete public inspection files. We conclude that Western
Slope is apparently liable for a forfeiture in the amount of
twenty-five thousand dollars ($25,000).
II. BACKGROUND
2. On August 21, 2012, an agent from the Enforcement Bureau's Denver
Office (Denver Office) conducted an inspection of the Stations at
their main studios co-located at 818 Taughenbaugh Blvd., Suite 107,
Rifle, Colorado. The Denver agent reviewed the Stations' public
inspection files and found that the files were each missing
issues/programs lists for twenty (20) quarters.^ Each station was
required to retain twenty-seven (27) quarters of lists since the
Stations' last renewals, which were granted on December 21, 2005.
3. On November 1, 2012, the Denver Office issued Notices of Violation to
Western Slope concerning the KRGS and KRVG inspections.^ In its
Consolidated NOV Response to the KRGS NOV and KRVG NOV,^ Western Slope
acknowledged that the issues/programs lists for the Stations were not
in the public inspection files located in the Rifle studio at the time
of the inspection.^ Western Slope stated that it quickly located the
documents in their entirety at the studio of a co-owned station in
Grand Junction, Colorado, and that because its Grand Junction stations
are part of the same employment unit as the Stations, Western Slope
believes an employee inadvertently misplaced the lists at the wrong
studio.^ Western Slope further stated that the oversight had been
corrected and included copies of all the required issues/programs
lists for both Stations for the applicable license terms in its
Consolidated NOV Response.^
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 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 Maintain the Issues and Programs Lists in the Public
Inspection File
5. Section 73.3526(a)(2) of the Rules requires that broadcast stations
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 lists and must include a brief narrative describing
what issues were given significant treatment and the programming that
provided this treatment. Copies of the issues/programs lists must be
retained in the public inspection file until final action has been
taken on the station's next license renewal application.^ The license
renewals for the Stations were granted on December 21, 2005, and
expired April 1, 2013.^ At the time of the August 21, 2012,
inspection, the Stations' public inspection files were each missing
twenty (20) of twenty-seven (27) quarters of radio issues/programs
lists. In its Consolidated NOV Response, Western Slope acknowledged
the missing issues/programs lists for both Stations.^ Based on the
evidence before us, we find that Western Slope apparently willfully
and repeatedly violated Section 73.3526 of the Rules by failing to
maintain the issues/programs lists and make them available in the
Stations' public inspection files.
B. Proposed Forfeiture Amount
6. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for violating the public
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.^ Applying the Forfeiture Policy Statement, Section 1.80 of
the Rules, and the statutory factors to the instant case, we find no
downward adjustments are warranted, but conclude that an upward
adjustment is warranted because of the large number of issues/programs
lists missing from the Stations' public inspection files.^
Accordingly, we propose a forfeiture amount of twelve thousand five
hundred dollars ($12,500) for each of the Stations, rather than the
base forfeiture amount. Applying the Forfeiture Policy Statement,
Section 1.80 of the Rules, and the statutory factors to the instant
case, we conclude that Western Slope is apparently liable for a
forfeiture in the amount of twenty-five thousand dollars ($25,000).
IV. ORDERING CLAUSES
7. 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, Western Slope
Communications, LLC, is hereby NOTIFIED of this APPARENT LIABILITY FOR
A FORFEITURE in the amount of twenty-five thousand dollars ($25,000)
for violation of Section 73.3526 of the Rules.^
8. 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, Western
Slope Communications, LLC, SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
9. Payment of the forfeiture must be made by check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account number
and FRN referenced above. Western Slope shall also send electronic
notification on the date said payment is made to WR-Response@fcc.gov.
Regardless of the form of payment, a completed FCC Form 159
(Remittance Advice) must be submitted.^ When completing the FCC Form
159, enter the Account Number in block number 23A (call sign/other ID)
and enter the letters "FORF" in block number 24A (payment type
code). Below are additional instructions you should follow based on
the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
10. Any request for making full payment over time under an installment
plan should be sent to: Chief Financial Officer--Financial
Operations, Federal Communications Commission, 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 by phone, 1-877-480-3201, or by e-mail,
ARINQUIRIES@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 1.16 and 1.80(f)(3) of the Rules.^ Mail the written statement
to Federal Communications Commission, Enforcement Bureau, Western
Region, Denver Office, 215 S. Wadsworth Blvd., Suite 303, Lakewood,
Colorado, 80226, and include the NAL/Acct. No. referenced in the
caption. Western Slope Communications, LLC, also shall e-mail the
written response 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 by both Certified Mail, Return Receipt
Requested, and first class mail to Western Slope Communications, LLC,
at 190 Turner Drive, Suite G, Durango, Colorado 81303, and to its
counsel, at Fletcher, Heald & Hildreth, PLC, 1300 North 17^th Street,
11^th Floor, Arlington, Virginia 22209.
FEDERAL COMMUNICATIONS COMMISSION
Nikki P. Shears
District Director
Denver Office
Western Region
Enforcement Bureau
^ 47 C.F.R. S 73.3526.
^ Specifically, the Stations were missing the issues/programs lists for
the following quarters: fourth quarter of 2005; first through fourth
quarters of 2006, 2007, 2008 and 2009; and first, second, and fourth
quarters of 2011.
^ See Western Slope Communications, LLC, Notice of Violation,
V201332800008 (Nov. 1, 2012) (KRGS NOV); Western Slope Communications,
LLC, Notice of Violation, V201332800007 (Nov. 1, 2012) (KRVG NOV).
^ See Consolidated NOV Response of Western Slope Communications, LLC
(filed Nov. 20, 2012) (on file in EB-FIELDWR-12-00003820) (Consolidated
NOV Response).
^ Consolidated NOV Response at 4.
^ Id.
^ Id., Exhibit B.
^ 47 U.S.C. S 503(b).
^ 47 U.S.C. S 312(f)(1).
^ H.R. Rep. No. 97-765, 97^th 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., Application for Review of Southern California Broad. Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388, para. 5 (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, para. 9.
^ 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.
^ Both Stations have renewal applications pending. See File No.
BR-20121203BQX (accepted for filing Dec. 5, 2012) (for KRGS); File No.
BRH-20121203BQU (accepted for filing Dec. 5, 2012) (for KRVG).
^ See Consolidated NOV Response at 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), recons.
denied, 15 FCC Rcd 303 (1999); 47 C.F.R. S 1.80.
^ 47 U.S.C. S 503(b)(2)(E).
^ See Gulf-California Broad. Co., Notice of Apparent Liability for
Forfeiture, 27 FCC Rcd 11421 (Enf. Bur. 2012) (forfeiture of $15,000
proposed for licensee who failed to place twenty-five (25) consecutive
issues/programs lists in a station's public inspection file) (forfeiture
paid).
^ 47 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314, 1.80,
73.3526.
^ An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
^ See 47 C.F.R. S 1.1914.
^ 47 C.F.R. SS 1.16, 1.80(f)(3).
(...continued from previous page)
(continued....)
Federal Communications Commission DA 13-1543
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Federal Communications Commission DA 13-1543