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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No.: EB-10-DT-0371
In the Matter of
) NAL/Acct. No.:
Gerald Parks 201332360001
)
Licensee of AM Station WEKC FRN: 0007921190
)
Williamsburg, Kentucky Facility ID No.: 72790
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: January 2, 2013 Released: January 3, 2013
By the District Director, Detroit Office, Northeast Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that Gerald Parks, licensee of AM Station WEKC, in
Williamsburg, Kentucky (Station), apparently willfully and repeatedly
violated Sections 73.3526(c)(1) and 73.3526(e)(12) of the Commission's
rules (Rules), by failing to maintain and make available the
issues/programs lists in the Station's public inspection file. We
conclude that Mr. Parks is apparently liable for a forfeiture in the
amount of fifteen thousand dollars ($15,000). In addition, we direct
Mr. Parks to submit, no later than thirty (30) calendar days from the
date of this NAL, a statement signed under penalty of perjury stating
that the station is now in compliance with Sections 73.3526(c)(1) and
73.3526(e)(12) of the Rules.
II. BACKGROUND
2. On March 14, 2012, agents from the Enforcement Bureau's Detroit Office
inspected the Station's main studio. The agent reviewed the materials
in the Station's public inspection file and found that the file did
not contain any quarterly issues/programs lists for the current
license term, i.e., it was missing 19 quarters of issues/programs
lists.
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. 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 and Make Available a Public Inspection File
4. The evidence in this case is sufficient to establish that Mr. Parks
violated Section 73.3526 of the Rules. 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.
5. On March 14, 2012, an agent reviewed the Station's public inspection
file and found that it did not have any quarterly issues/programs
lists for the current license term. Accordingly, based on the evidence
before us, we find that Mr. Parks apparently willfully and repeatedly
violated Sections 73.3526(e)(12) and 73.3526(c)(1) of the Rules by
failing to maintain the issues/programs lists and make them available
in the Station's public inspection file.
B. Proposed Forfeiture Amount and Reporting Requirement
6. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for violation of 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. After consideration of these factors, we find that a $5,000
upward adjustment in the base forfeiture amount is warranted. Mr.
Parks previously received a Notice of Apparent Liability for
Forfeiture for, inter alia, failure to maintain quarterly
issues/programs lists. The fact that Mr. Parks previously committed a
similar violation demonstrates a deliberate disregard for the
Commission's rules. Applying the Forfeiture Policy Statement, Section
1.80 of the Rules, and the statutory factors to the instant case, we
conclude that Mr. Parks is apparently liable for a total forfeiture
in the amount of $15,000.
7. We further order Mr. Parks to submit a written statement, pursuant to
Section 1.16 of the Rules, signed under penalty of perjury, stating
that the radio issues/program lists have been compiled, and the
issues/program lists have been and are continuing to be placed in the
public inspection file by the tenth day of the succeeding calendar
quarter. This statement must be provided to the Detroit Office at the
address listed in paragraph 12 within thirty (30) calendar days of
the release date of this Notice of Apparent Liability for Forfeiture
and Order.
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, Gerald Parks is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the
amount of fifteen thousand dollars ($15,000) for violations of
Sections 73.3526(c)(1) and 73.3526(e)(12) of the Rules.
9. 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,
Gerald Parks SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
10. IT IS FURTHER ORDERED that Gerald Parks SHALL SUBMIT a written
statement, as described in paragraph 7, 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, Northeast Region,
Detroit Office, 24897 Hathaway Street, Farmington Hills, Michigan,
48335. Mr. Parks shall also e-mail the written statement to
NER-Response@fcc.gov.
11. 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. Mr. Parks shall also send electronic
notification on the date said payment is made to NER-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.
12. 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, Northeast
Region, Detroit Office, 24897 Hathaway Street, Farmington Hills,
Michigan, 48335, and include the NAL/Acct. No. referenced in the
caption. Gerald Parks also shall email the written response to
NER-Response@fcc.gov.
13. 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.
14. 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 first class mail to Gerald Parks at 402 Main
Street, Williamsburg, Kentucky 40769.
FEDERAL COMMUNICATIONS COMMISSION
James A. Bridgewater
District Director
Detroit Office
Northeast Region
Enforcement Bureau
47 C.F.R. S: 73.3526(c)(1), 73.3526(e)(12).
The current license term began when the license renewal application was
granted on March 13, 2007. See File No. BR-20040525AAV.
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., Application for Review of Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388, para.8 (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.
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 Gerald Parks, Notice of Apparent Liability for Forfeiture, NAL/Acct.
No. 200532360003 (Detroit Office, rel. August 26, 2005) (forfeiture paid).
See L. Stanley Wall, Notice of Apparent Liability for Forfeiture and
Order, 26 FCC Rcd 8506 (Enf. Bur. 2011) (upwardly adjusting the $10,000
base forfeiture amount by $5,000 because the licensee had previously been
warned about its failure to maintain issues/programs lists in the local
public inspection file).
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(c)(1), 73.3526(e)12.
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
(...continued from previous page)
(continued....)
Federal Communications Commission DA 13-2
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Federal Communications Commission DA 13-2