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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Della Jane Woofter Licensee of WVRW Glenville, WV ) ) ) )
) ) ) ) File Number: EB-10-CF-152 NAL/Acct. No. 201132340002 FRN:
0013804737 Facility ID # 170948
FORFEITURE ORDER
Adopted: April 30, 2013 Released: May 1, 2013
By the Regional Director, Northeast Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order, we issue a monetary forfeiture in the amount
of ten thousand dollars ($10,000) to Della Jane Woofter, licensee of
FM Station WVRW in Glenville, West Virginia (Station), for willfully
and repeatedly violating Section 73.3526(e)(12) of the Commission's
rules (Rules)^ by failing to maintain and make available quarterly
radio issues/programs lists in the local public inspection file.
II. BACKGROUND
2. On August 24, 2010, an agent from the Enforcement Bureau's Columbia
Office conducted a routine inspection during normal business hours at
Station WVRW's main studio, located at 300 Harrison Avenue in Weston,
West Virginia, with the Station's manager. The agent reviewed the
materials in the public inspection file and found that the file did
not contain any issues/programs lists for the current license term,
i.e., nine quarterly issues/programs lists.^ The Station's manager
admitted to the agent that the Station did not maintain
issues/programs lists.
3. On May 24, 2011, the Columbia Office issued a Notice of Apparent
Liability for Forfeiture (NAL) in the amount of $10,000 to Ms. Woofter
for failing to maintain and make available quarterly radio
issues/programs lists in the public inspection file.^ Ms. Woofter
responded to the NAL on June 9, 2011.^ In the Declaration that
accompanied the Response, the Station's manager claims that he never
stated that the Station did not maintain issues/programs lists and Ms.
Woofter asserts that the NAL should be canceled on the grounds that
(1) at the time of the inspection the issues/programs lists could not
be located because they were drying out from water damage sustained
during a devastating storm on June 24, 2010 and (2) the amount of the
proposed forfeiture is excessive given the nature of the violation.^
III. DISCUSSION
4. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Communications Act of 1934, as amended
(Act),^ Section 1.80 of the Rules,^ and the Commission's Forfeiture
Policy Statement.^ In examining Ms. Woofter's Response, Section 503(b)
of the Act requires that the Commission take 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.^ We considered Ms. Woofter's Response to the NAL in light of
these statutory factors and find that neither cancellation nor
reduction of the forfeiture is warranted for the reasons discussed
below.
5. Section 73.3526(a)(2) of the Rules requires that every licensee of an
AM or FM station shall maintain a public inspection file containing
the material relating to that station described in Section 73.3526(e)
of the Rules.^ Specifically, Section 73.3526(e)(12) 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 of the lists 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.^ On August 24, 2010, an agent
from the Columbia Office found that the Station's public inspection
file did not contain any issues/programs lists since the Station's
current license term began on March 13, 2008, i.e., nine quarterly
issues/programs lists were missing from the public file.
6. The evidence does not support Ms. Woofter's claim that she maintained
the lists and that they were unavailable during the August 24, 2010,
inspection because they were "soaked and . . . drying out" from water
damage sustained during a devastating storm on June 24, 2010, a storm
which Ms. Woofter also alleges blew the roof off the studio and
destroyed a substantial amount of broadcast equipment.^ During the
August 24, 2010, inspection, the agent did not observe any visible
damage to the main studio building or to the broadcast equipment.
Further, when the agent inspected the Station's public file, he found
that the file contained other required documents, such as a copy of
the Station authorization, the ownership report, and the Station's
contour map, none of which appeared to have water damage.^ In
addition, the lists Ms. Woofter submits with her Response, which
allegedly were the ones that had been "drying out," have no sign of
water damage. Based on our review of the facts, the preponderance of
the evidence does not support Ms. Woofter's account.^ Accordingly, we
affirm the finding in the NAL that Ms. Woofter willfully and
repeatedly violated Section 73.3526 of the Rules by failing to
maintain and make available issues/programs lists. ^ ^
7. We also disagree with Ms. Woofter that the proposed forfeiture amount
is excessive. Ms. Woofter notes that the proposed $10,000 forfeiture
for the public file violation is substantially more than the $7,000
forfeiture assessed for a serious public safety issue involving an
antenna structure owner's failure to properly maintain antenna
structure lighting.^ While it is correct that the case Ms. Woofter
cites resulted in the assessment of a $7,000 forfeiture, the amount
initially proposed in that case was $20,000 and it was only later
reduced to $7,000 based on the antenna structure owner's demonstrated
inability to pay.^ The base forfeiture amount under Section 1.80(b) of
the Rules for public violations is $10,000^ and the forfeiture
proposed in this case is consistent with other precedent involving a
similar number of missing issues/programs lists.^ We therefore see no
reason to cancel or reduce the proposed forfeiture amount on this
basis.
8. In sum, we have examined Ms. Woofter's Response to the NAL pursuant to
the statutory factors above, and in conjunction with the Forfeiture
Policy Statement. As a result of our review, we conclude that Ms.
Woofter willfully and repeatedly violated Section 73.3526 of the
Rules. Considering the entire record and the factors listed above, we
find that a forfeiture in the amount of $10,000 is warranted.
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(f)(4) of the Commission's Rules, Della Jane
Woofter IS LIABLE FOR A MONETARY FORFEITURE in the amount of ten
thousand dollars ($10,000) for willfully and repeatedly violating
Section 73.3526 of the Commission's rules.^
10. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within thirty (30) calendar days after the
release date of this Forfeiture Order.^ If the forfeiture is not paid
within the period specified, the case may be referred to the U.S.
Department of Justice for enforcement of the forfeiture pursuant to
Section 504(a) of the Act.^ Della Jane Woofter shall send electronic
notification of payment to NER-Response@fcc.gov on the date said
payment is made. The payment must be made by check or similar
instrument, wire transfer, or credit card, and must include the
NAL/Account number and FRN referenced above. 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.
11. 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. 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,
[1]ARINQUIRIES@fcc.gov.
12. IT IS FURTHER ORDERED that a copy of this Forfeiture Order shall be
sent by both First Class Mail and Certified Mail, Return Receipt
Requested to Della Jane Woofter at her address of record.
FEDERAL COMMUNICATIONS COMMISSION
G. Michael Moffitt
Regional Director, Northeast Region
Enforcement Bureau
^ See 47 C.F.R. S 73.3526(e)(12).
^ The current license term for Station WVRW began on March 13, 2008, when
Ms. Woofter received a license to cover the construction permit for
Station WVRW. See File No. BLH - 20080220ABB, granted March 13, 2008.
^ Della Jane Woofter, Notice of Apparent Liability for Forfeiture, 26 FCC
Rcd 7627 (Enf. Bur. 2011) (NAL).
^ See Letter from Lauren A. Colby, Counsel for Ms. Woofter, to Salomon
Satche, District Director, Columbia Office, Northeast Region, Enforcement
Bureau (filed June 9, 2011, in EB-10-CF-152) (Response). The Response
includes a signed declaration from Stephen R. Peters, Station WVRW's
general manager (Declaration). Mr. Peters is also the licensee and manager
of Station WHAW, Lost Creek, West Virginia, which shares the main studio
in Weston, West Virginia, with Station WVRW. We also are issuing today a
forfeiture order to Mr. Peters for a similar public inspection file
violation discovered during an inspection of Station WHAW on August 24,
2010. See Stephen R. Peters, Forfeiture Order, DA 13-967 (Enf. Bur. May 1,
2013). We note that Mr. Colby passed away on May 22, 2012, and Ms. Woofter
has not retained new counsel.
^ Declaration at 1.
^ 47 U.S.C. S 503(b).
^ 47 C.F.R. S 1.80.
^ 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), recons. denied, 15 FCC Rcd 303 (1999)
(Forfeiture Policy Statement).
^ 47 U.S.C. S 503(b)(2)(E).
^ 47 C.F.R. S 73.3526(a)(2).
^ 47 C.F.R. S 73.3526(e)(12).
^ Id.
^ 47 C.F.R. S 73.3526(b).
^ See Declaration at 1.
^ We also question the likelihood that it would take more than two months
for the issues/programs lists to sufficiently dry.
^ We note that the station manager's claim in the Response that he never
told the agent that Station WTOR did not maintain issues/programs lists
(Declaration at 1), is inconsistent with the agent's contemporaneous
inspection notes. In any event, even if we set aside that admission, it
does not change our conclusion that the Station violated Section 73.3526
of the Rules, given the agent's other observations during the inspection.
^ Given our conclusions, we remind Ms. Woofter of the duty of candor and
truthfulness expected of all Commission licensees, as well as the possible
penalties for misrepresentation, including monetary forfeitures and
license revocation or non-renewal. See, e.g., 47 U.S.C. S 312(a); 47
C.F.R. S 1.17.
^ See Response at 1.
^ See Big Fish Broadcasting, LLC, Notice of Apparent Liability for
Forfeiture, NAL/Acct. No. 201032480003 (Enf. Bur. Atlanta Office, rel.
January 26, 2010).
^ 47 C.F.R. S 1.80(b).
^ See, e.g., Mapleton License of San Luis Obispo, LLC, Forfeiture Order,
27 FCC Rcd 4099 (Enf. Bur. 2012).
^ 47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314, 1.80(f)(4),
73.3526.
^ 47 C.F.R. S 1.80.
^ 47 U.S.C. S 504(a).
^ 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.
Federal Communications Commission DA 13-968
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Federal Communications Commission DA 13-968
References
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