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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
WS COMMUNICATIONS, L.L.C. ) File No. 99030159
) NAL/Acct. No. X32080007
Licensee of Station KWGL(FM) ) JJS
Ouray, Colorado )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 15, 2000 Released: March 16, 2000
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture, we
find that WS Communications, L.L.C. (``WS''), licensee of station
KWGL(FM), Ouray, Colorado, apparently violated Section 73.3526 of
the Commission's rules, 47 C.F.R. § 73.3526, by not maintaining a
public inspection file from February 1999 through August 1999.
We also find that WS violated the former version of the same rule
from December 1997 through October 1998 by failing to keep its
public inspection file in its community of license. We conclude
that WS is apparently liable for a ten thousand dollar ($10,000)
forfeiture.
II. BACKGROUND
2. On February 26, 1999, the Mass Media Bureau received a
complaint alleging that WS and Western Slope Communications,
L.L.C. (``Western Slope''), a commonly-owned limited-liability
company and the licensee of KZKS(FM), Rifle, Colorado, were not
in compliance with the Commission's main studio and public
inspection file requirements.1 As a result of that complaint,
the Commission sent WS and Western Slope a letter of inquiry on
August 3, 1999.
3. WS and Western Slope responded to the Commission's
letter of inquiry on September 16, 1999. With respect to
KWGL(FM), WS stated that from the time it acquired the station in
April 1995 until February 1999, the public inspection file was
maintained at its main studio in Ridgway, Colorado. From
February 1999, when WS moved its main studio, through August
1999, WS did not maintain a public inspection file for KWGL(FM)
at any location. In August 1999, WS established the public
inspection file at the Ouray Public Library in Ouray, Colorado.
In September 1999, WS also established its public inspection file
at its current main studio location in Montrose, Colorado.
4. WS states that it has taken steps to avoid future
violations of the Commission's public inspection file rule by
replacing the station's General Manager with a new Station
Manager, ``who is aware of the Commission's public file
requirements and is committed to fully complying with those
requirements.''
III. DISCUSSION
5. Section 73.3526(a) of the Commission's rules, 47 C.F.R.
§ 73.3526(a), requires all licensees of commercial broadcast
stations to maintain a public inspection file containing certain
designated information. Section 73.3526(b) of the Commission's
rules, 47 C.F.R. § 73.3526(b), currently requires that the public
inspection file be maintained at the main studio. This
requirement became effective on October 30, 1998. See 63 Fed.
Reg. 56578 (October 22, 1998). Prior to October 30, 1998, a
station whose main studio was located outside the community of
license was required, with one exception not pertinent here, to
maintain its public inspection file at an accessible location in
its community of license. See former Section 73.3526(d) of the
Commission's rules, 47 C.F.R. § 73.3526(d) (1997).
6. WS violated the current rule from February 1999, when
it ceased maintaining a public inspection file, until September
1999, when it reestablished the public inspection file at its
main studio in Montrose. We note that while the file was placed
in Ouray in August 1999, that file was not established in the
proper location. WS also violated the former version of the rule
from the time it acquired the station in April 1995 until the
rule was changed on October 30, 1998 because it did not keep the
public inspection file in the community of license. For this
violation, we will assess a forfeiture only for the period from
December 11, 1997 until October 30, 1998 because WS' application
for renewal of license was granted on December 11, 1997,2 and a
forfeiture for violations prior to that time is barred by the
statute of limitations. See 47 U.S.C. § 503(b)(6)(A).
7. Section 503(b) of the Communications Act, 47 U.S.C. §
503(b) and Section 1.80(a) of the Commission's rules, 47 C.F.R. §
1.80(a), each state that any person who willfully or repeatedly
fails to comply with the provisions of the Communications Act or
the Commission's rules shall be liable for a forfeiture penalty.
For purposes of Section 503(b) of the Communications Act, the
term ``willful'' means that the violator knew it was taking the
action in question, irrespective of any intent to violate the
Commission's rules. See Southern California Broadcasting Co., 6
FCC Rcd 4387, 4387-4388 (1991). Furthermore, a continuing
violation is ``repeated'' if it lasts more than one day. Id., 6
FCC Rcd at 4388.
8. The Commission's Forfeiture Policy Statement sets a
base forfeiture amount of $10,000 for public file violations.
The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Commission's Rules, 12 FCC Rcd 17087, 17113
(1997), recon. denied FCC 99-407 (released December 28, 1999).
In this case, the existence of multiple violations, the duration
of the violations, and WS's total failure to maintain a public
inspection file for a six-month period are aggravating factors.
On the other hand, we note that, during the earlier violation, WS
maintained a public inspection file (although at the wrong
location). While WS has replaced personnel in order to prevent
future violations, those remedial efforts do not excuse prior
violations. See Sonderling Broadcasting Corp., 69 FCC 2d 289,
291 (Broadcast Bureau 1977), citing Executive Broadcasting Corp.,
3 FCC 2d 699 (1966). Considering the records as a whole, we
believe that a $10,000 forfeiture is appropriate for the
violations in this case.
IV. ORDERING CLAUSES
9. ACCORDINGLY, IT IS ORDERED pursuant to Section 503(b)
of the Communications Act of 1934, as amended, 47 U.S.C. §
503(b), and Sections 0.111, 0.311 and 1.80 of the Commission's
rules, 47 C.F.R. §§ 0.111, 0.311 and 1.80, that WS
Communications, L.L.C. is hereby NOTIFIED of its APPARENT
LIABILITY FOR FORFEITURE in the amount of ten thousand dollars
($10,000) for willfully and repeatedly violating Section 73.3526
of the Commission's rules, 47 C.F.R. § 73.3526.
10. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the
Commission's rules, that within thirty days of the release of
this Notice, WS SHALL PAY to the United States the full amount of
the proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
11. Payment of the forfeiture may be made by credit card
through the Commission's Credit and Debt Management Center at
(202) 418-1995 or by mailing a check or similar instrument,
payable to the order of the Federal Communications Commission, to
the Forfeiture Collection Section, Finance Branch, Federal
Communications Commission, P.O. Box 73482, Chicago, Illinois
60673-7482. The payment should note the NAL/Acct. No. referenced
above.
12. The response, if any, must be mailed to Charles W.
Kelley, Chief, Investigations and Hearings Division, Enforcement
Bureau, Federal Communications Commission, 445 12th Street, S.W,
Room 3-B443, Washington DC 20554 and MUST INCLUDE the file number
listed above.
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. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Credit and Debt Management Center, 445 12th Street,
S.W., Washington, D.C. 20554. See 47 C.F.R. § 1.1914.
15. IT IS FURTHER ORDERED that a copy of this Notice shall
be sent, by Certified Mail/Return Receipt Requested, to WS
Communications, L.L.C., c/o Brill & Meisel, 488 Madison Avenue,
Suite 500, New York, New York 10022, and to WS' counsel, Tom W.
Davidson, Esq., Akin, Gump, Strauss, Hauer & Feld, L.L.P., 1333
New Hampshire Avenue, N.W., Washington, DC 20036.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 At the time of the complaint, the call sign of WS's station
was KURA(FM). The call sign of the station was changed to KWGL
on March 1, 1999. For ease of reference, we will use the current
call letters when referring to the station. The remaining
allegations in the complaint will be addressed separately.
2 See Broadcast Actions, Report No. 44139 (released December 11,
1997) (File No. BRH-19961202Q1).