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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of Pacific Empire Radio Corporation Licensee of: Station
KLBM, La Grande, Oregon Station KBKR, Baker, Oregon Station KUBQ, La
Grande, Oregon Station KKBC-FM, Baker, Oregon Station KRJT, Elgin, Oregon
) ) ) ) ) ) ) ) ) ) ) File No.: EB-FIELDWR-12-00002389 NAL/Acct. No.:
201232920001 FRN: 0006196612 Facility ID Nos.: 35047 24794 24796 24795
164224
FORFEITURE ORDER
Adopted: February 6, 2014 Released: February 7, 2014
By the Regional Director, Western Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (Order), we issue a monetary forfeiture in
the amount of twenty-five thousand dollars ($25,000) to 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
(collectively, the Stations), for willfully and repeatedly violating
Section 73.3526(e)(12) of the Commission's rules (Rules).^ The noted
violation involved Pacific Empire's failure to retain multiple issues
and programs lists in the local public inspection file for each of the
Stations.
II. BACKGROUND
2. On May 22, 2012, the Enforcement Bureau's Portland Resident Agent
Office (Portland Office) issued a Notice of Apparent Liability for
Forfeiture and Order (NAL) ^ for twenty-five thousand dollars
($25,000) to Pacific Empire for failing to comply with the public file
requirements for all five Stations.^ In response to the NAL, Pacific
Empire does not deny the violations, but requests cancellation or
reduction because the FCC has allegedly never complied with its
obligations under the Small Business Regulatory Enforcement and
Fairness Act of 1996 (SBREFA),^ and because the proposed forfeiture is
allegedly excessive when viewed in light of forfeitures for other
public file violations and the relative insignificance of the
violation.^
III. DISCUSSION
3. 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 Forfeiture Policy
Statement.^ In examining Pacific Empire's response, Section
503(b)(2)(E) 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.^
4. We affirm the NAL's finding that Pacific Empire violated Section
73.3526(e)(12) 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. As reflected in the NAL, 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 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.^
6. In response to the NAL, Pacific Empire nonetheless requests
cancellation or reduction of the $25,000 forfeiture, first arguing
that it is a "small entity" as that term is used in the SBREFA and
that the Commission has never complied with its obligation under the
SBREFA "to adopt a specific policy or program concerning the reduction
or waiver of forfeiture for small entities."^ We find no merit in
Pacific Empire's contention. The Commission has previously held that
its policies, as detailed in the Forfeiture Policy Statement, comply
with the SBREFA.^ In particular, the Commission found that, consistent
with the SBREFA, its precedent requires consideration of a small
entity's ability to pay along with any good faith efforts by the
entity to comply with the law.^ In addition, the Commission confirmed
its "other upward and downward adjustment factors, which are
reflective of existing policy, encompass many of the conditions and
exclusions listed and . . . SBREFA."^
7. Pacific Empire also argues that the proposed forfeiture amount is
excessive compared to forfeitures proposed in similar cases,^ and out
of proportion to the seriousness of the violation.^ We find no merit
to Pacific Empire's arguments. The Commission has determined that
forfeitures are appropriate in cases where issues/programs lists are
missing from the public inspection file, and underscored the
seriousness of such violations, because "[t]hese 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."^ Contrary to Pacific Empire's
assertion,^ a proposed forfeiture of $25,000 to the five co-located
stations, averaging $5,000 per station, for failing to make the twelve
most recent quarterly issues/programs lists for each station available
for public inspection is consistent with current procedure and
precedent.^ As noted, the Portland Office considered several factors
in its assessment of the proposed forfeiture amount: 1) the number of
Stations involved; 2) the Stations' public inspection files were
partially complete; 3) the missing issues/programs lists would have
been substantially similar given the proximity of the communities
served by the Stations; and 4) Pacific Empire's prior history of
compliance.^ As we have noted in the past, each case presents a unique
set of considerations and facts, and we must review each case
consistent with the statutory factors.^
8. We find that the Portland Office properly considered the statutory
factors concerning Pacific Empire and its Stations. Therefore, after
consideration of the entire record and the factors listed above, we
find that a forfeiture in the amount of $25,000 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, Pacific Empire
Radio Corporation IS LIABLE FOR A MONETARY FORFEITURE in the amount of
twenty-five thousand dollars ($25,000) for violations of Section
73.3526(e)(12) of the 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.^ Pacific Empire Radio Corporation shall
send electronic notification of payment to WR-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.
* 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.
11. 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.
12. IT IS FURTHER ORDERED that a copy of this Order shall be sent by both
First Class and Certified Mail, Return Receipt Requested, to Pacific
Empire Radio Corporation, 403 "C" Street, Lewiston, Idaho 83501, and
to its counsel, David Tillotson, Esquire, 4606 Charleston Terrace, NW,
Washington, D.C. 20007-1911.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
Enforcement Bureau
^ 47 C.F.R. S 73.3526(e)(12).
^ Pacific Empire Radio Corporation, Notice of Apparent Liability for
Forfeiture and Order, 27 FCC Rcd 5306 (Enf. Bur. 2012) (NAL). A
comprehensive recitation of the facts and history of this case can be
found in the NAL and is incorporated herein by reference.
^ P.L. 104-121, March 29, 1996, as amended by P.L. May 25, 2007.
^ See Response of Pacific Empire Radio Corporation to Portland Resident
Agent Office, Western Region, Enforcement Bureau (Jun. 15, 2012) (on file
in EB-FIELDWR-12-00002389) (NAL Response).
^ 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).
^ See NAL, supra note 2.
^ 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.
^ NAL, 27 FCC Rcd at 5308, para. 6.
^ As required by the NAL, Pacific Empire submitted a written statement,
signed under penalty of perjury, stating that the Stations are now in
compliance with Section 73.3526 of the Rules. See Statement of Kurt Luchs,
President, Pacific Empire Radio Corporation, to the Portland Office,
Western Region, Enforcement Bureau (Jun 5, 2012) (on file in
EB-FIELDWR-12-00002389).
^ NAL Response at 2-3.
^ Forfeiture Policy Statement, 12 FCC Rcd at 17109.
^ Id.
^ Id. See e.g., North County Broadcasting Corporation, Forfeiture Order,
28 FCC Rcd 1207 (Enf. Bur. 2013) (assessment of a $4,800 forfeiture
against a small broadcaster, for failing to ensure the operational
readiness of its Emergency Alert System equipment, that took into account
the broadcaster's history of compliance and ability to pay, is consistent
with the requirements of the SBREFA).
^ NAL Response at 3-5.
^ NAL Response at 5-6. Pacific Empire also states "in January 2006 [its
attorney] filed a Petition for Rulemaking (RM-11332) proposing that the
Public File Rules be abolished on the grounds they serve no useful
purpose." NAL Response at 5. We note that the rulemaking was put on Public
Notice, but that the Commission has taken no further action on the
proposed rulemaking. See Consumer & Governmental Affairs Bureau Reference
Information Center Petition for Rulemakings Filed, Public Notice, Report
No. 2772 (rel. May 19, 2006). As the Commission has declined to abolish
the public file rules, the Enforcement Bureau will continue to vigorously
enforce them.
^ Lazer Licenses, LLC, Order on Review, 27 FCC Rcd 626, 629 (2012)
(affirming an Enforcement Bureau order assessing forfeitures on three
broadcast stations for failing to make available multiple issues/programs
lists).
^ Pacific Empire cites to 15 Notices of Apparent Liability for Forfeiture
(Notices) issued by the Media Bureau on October 8, 2003, each for $3000,
concerning issues/programs list violations. We note that in each of these
Notices, the issues/programs list violation was self-reported by the
licensee, and that, unlike Pacific Empire, the licensee had remedied the
violation prior to the report to the Commission. See, e.g., Mel Wheeler,
Inc., c/o Vincent A. Pepper, Esq., Notice of Apparent Liability for
Forfeiture, 18 FCC Rcd 20215 (Med. Bur. 2003) (proposed forfeiture of
$3,000 for self-reporting three issues/programs lists were not timely
placed in public inspection file); Kenneth E. Satten, Esq., Notice of
Apparent Liability for Forfeitures, 18 FCC Rcd 20175 (Med. Bur. 2003)
(proposed forfeiture of $3,000 for self-reporting that one issues/programs
list was not timely placed in public inspection file); David Tillotson,
Esquire,, Notice of Apparent Liability for Forfeiture, 18 FCC Rcd 20151
(Med. Bur. 2003) (proposed forfeiture of $3,000 for self-reporting
issues/programs lists were not timely placed in public inspection file).
^ See, e.g., Vision Latina Broadcasting, Inc., Notice of Apparent
Liability for Forfeiture, 27 FCC Rcd 6258 (Enf. Bur. 2012) (proposing a
$15,000 forfeiture for failing to make any issues/programs lists available
for inspection); L. Stanley Wall, Notice of Apparent Liability for
Forfeiture, 26 FC Rcd 8506 (Enf. Bur. 2011) (proposing a $15,000
forfeiture for failing to make all but one issues/programs list available
for inspection). Pacific Empire argues that the forfeiture amount proposed
is inconsistent with the Enforcement Bureau's decisions in Daniel D.
Smith, Notice of Apparent Liability for Forfeiture, 25 FCC Rcd 15874 (Enf.
Bur. 2010) (Smith) and James J. Chladek, Forfeiture Order, 24 FCC Rcd 9337
(Enf. Bur. 2009) (Chladek). NAL Response at 4. We disagree. In Smith, the
Station KANR public inspection file was missing five issues/programs lists
and the Bureau proposed a forfeiture of $4,000 and in Chladek, the Station
WXMC public inspection file was missing seven issues/programs lists. In
the current case, each of the Stations' public files was missing twelve
issues/programs lists.
^ 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 incorrectly states
that the NAL determined that Pacific Empire was entitled to a 50 percent
reduction for its history of compliance. See NAL Response at 5. The NAL
makes no such statement and the typical reduction for history of
compliance is far less than 50 percent. See, e.g. L.R. Radio Group,
Forfeiture Order, 27 FCC Rcd 11260 (Enf. Bur. 2012) (reducing from $10,000
to $8,000 a proposed forfeiture for failing to make a complete public
inspection file available because of the station's demonstrated history of
compliance); Joaquim Barbosa, Forfeiture Order, 27 FCC Rcd 15334 (Enf.
Bur. 2012) (reducing from $20,000 to $16,000 a proposed forfeiture to an
amateur radio operator for unauthorized operation because of the
operator's demonstrated history of compliance).
^ See Lazer Licenses, LLC, Forfeiture Order, 28 FCC Rcd 1202, 1204 (Enf.
Bur. 2013) (assessing a forfeiture of $8,000 to one station for nine
missing issues/programs lists).
^ 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(e)(12).
^ 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 14-155
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Federal Communications Commission DA 14-155