*Pages 1--4 from Microsoft Word - 32050* DA 03- 3073 Released: October 8, 2003 FEDERAL COMMUNICATIONS COMMISSION 445 12 th STREET, S. W. WASHINGTON, DC 20554 October 8, 2003 In Reply Refer to: 1800B3- SS NAL/ Acct No. MB- AD 20031810034 CERTIFIED MAIL – RETURN RECEIPT REQUESTED Board of Trustees Eastern Mennonite University 1200 Park Road Harrisonburg, VA 22801 In re: WEMC- FM, Harrisonburg, VA Board of Trustees of Eastern Mennonite University Facility ID: 4308 File No. BRED- 20030528AGZ Dear Board of Trustees: This letter refers to the captioned application of Board of Trustees of Eastern Mennonite University for renewal of license for station WEMC- FM, Harrisonburg, Virginia. For the reasons set forth below, we issue a NOTICE OF APPARENT LIABLILITY FOR A FORFEITURE to Board of Trustees of Eastern Mennonite University for violation of the Commission’s rule regarding a broadcast station’s public inspection file, 47 C. F. R Section 73.3527, and we grant the WEMC- FM license renewal application. Public file rule violation. Section III, Item 3 of the license renewal application form, FCC Form 303- S, requests that the licensee certify that the documentation required by Section 73.3526 or 73.3527, as applicable, has been placed in the station’s public inspection file at the appropriate times. Board of Trustees of Eastern Mennonite University indicated “No” to that certification, attaching an Exhibit explaining that the issues/ programs lists for quarters one and two of 2001were not placed in the public file, and the annual employments reports for 1998 and 1999 are also missing from the public file. The Exhibit states that a new station manager has been hired to correct the problems. Section 73.3527 of the Commission’s Rules requires broadcast licensees to maintain a public inspection file containing specific types of information related to station operations. The purpose of this requirement is to provide the public with timely information at regular intervals throughout the license period. 1 In this regard, where lapses occur in maintaining the public file, 1 Cf. Letter to Kathleen N. Benfield from Linda B. Blair, Chief, Audio Services Division (April 3, 1997), 13 FCC Rcd 1 neither the negligent acts or omissions of station employees or agents, nor the subsequent remedial actions undertaken by the licensee, excuse or nullify a licensee’s rule violation. 2 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. 3 A continuing violation is “repeated” if it lasts more than one day. 4 The Commission’s Forfeiture Policy Statement sets a base forfeiture amount of $10,000 for public file violations. 5 In this case, the violations were admitted to the Commission in the context of the license renewal application, and the licensee has corrected the violation and instituted measures to prevent its recurrence. On the other hand, the violation continued from 2001- 2003 and perhaps prior to 1998. Considering the record as a whole, we believe that a $4,000 forfeiture is appropriate for the violation in this case. 6 We will, however, reduce the forfeiture to $3,000 due to the licensee’s voluntary disclosure of the violation. 7 License renewal application. In evaluating an application for license renewal, the Commission’s decision is governed by Section 309( k) of the Communications Act. That section provides that if, upon consideration of the application and pleadings, we find that (1) the station has served the public interest, convenience, and necessity; (2) there have been no serious violations of the Communications Act or the Commission’s Rules; and (3) there have been no other violations which, taken together, constitute a pattern of abuse, we are to grant the renewal application. 8 If, however, the licensee fails to meet that standard, the Commission may deny the application – after notice and opportunity for a hearing under Section 309( e) of the Act – or grant 4102 (1997) citing License Renewal Applications of Certain Commercial Radio Stations, 8 FCC Rcd 6400 (1993). 2 See Padre Serra Communications, Inc., 14 FCC Rcd 9709 (1999)( citing Gaffney Broadcasting, Inc., 23 FCC 2d 912, 913 (1970) and Eleven Ten Broadcasting Corp., 33 FCC 706 (1962)); Surrey Front Range Limited Partnership, 71 RR 2d 882 (FOB 1992). 3 See Southern California Broadcasting Co., 6 FCC Rcd 4387, 4387- 4388 (1991). 4 Id., 6 FCC Rcd at 4388. 5 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, 15 FCC Rcd 303 (1999). 6 See KLDT- TV 55, Inc. 10 FCC Rcd 3198 (1995); Barry D. Wood, Esq. 7 FCC Rcd 6262 (FOB 1992). 7 See Surrey Front Range Limited Partnership, 7 FCC Rcd 6361 (FOB 1992) (voluntary disclosure constitutes a downward adjustment criterion). 8 47 U. S. C. § 309( k)( 1). The renewal standard was amended to read as described by Section 204( a) of the Telecommunications Act of 1996, Pub. L. No. 104- 104, 110 Stat. 56 (1996). See Order, Implementation of Sections 204( a) and 204( c) of the Telecommunications Act of 1996 (Broadcast License Renewal Procedures), 11 FCC Rcd 6363 (1996). 2 the application “on terms and conditions that are appropriate, including a renewal for a term less than the maximum otherwise permitted.” 9 The public inspection file rule serves the critical function of making available to the public important information regarding programs that provided a station’s most significant treatment of community issues during the license term. On balance, however, we find that Board of Trustees of Eastern Mennonite University’s violation of Section 73.3527 does not constitute a “serious violation” of the Commission’s rules warranting designation for evidentiary hearing. Moreover, we find no evidence of violations that, when considered together, evidence a pattern of abuse. 10 Further, we find that station WEMC- FM served the public interest, convenience, and necessity during the subject license term. We will therefore grant the license renewal application below. Conclusion/ Actions. For the reasons set forth above, and pursuant to Section 503 (b) of the Communications Act of 1934, as amended, 47 U. S. C. Section 503( b), and Sections 0.283 and 1.80 of the Commission’s Rules, 47 U. S. C. §§ 0.283 and 1.80, Board of Trustees of Eastern Mennonite University is hereby advised of its apparent liability for a forfeiture of $3,000 for willfully and repeatedly violating Section 73.3527. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission’s rules, that within thirty days of the release of this Notice, Board of Trustees of Eastern Mennonite University 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. 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. The response, if any, must be mailed to Peter H. Doyle, Chief, Audio Division, Media Bureau, Federal Communications Commission, 445 12 th Street, S. W., Room 2- A360, Washington, D. C. 20554 and MUST INCLUDE the NAL/ Account number referenced in the caption of this document (MB- AD 20031810034). 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 9 47 U. S. C. §§ 309( k)( 2), 309( k)( 3). 10 For example, we do not find here that the licensee's station operation "was conducted in an exceedingly careless, inept and negligent manner and that the licensee is either incapable of correcting or unwilling to correct the operating deficiencies." See Heart of the Black Hills Stations, 32 F. C. C. 2d 196, 198 (1971). Nor do we find on the record here that "the number, nature and extent" of the violations indicate that "the licensee cannot be relied upon to operate [the station] in the future in accordance with the requirements of its licenses and the Commission's Rules." Heart of the Black Hills Stations, 32 F. C. C. 2d at 200. See also Center for Study and Application of Black Economic Development, 6 FCC Rcd 4622 (1991), Calvary Educational Broadcasting Network, Inc., 7 FCC Rcd 4037 (1992). 3 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. 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. Finally, IT IS ORDERED, that the application (File No. BRED- 20030528AGZ) of Board of Trustees of Eastern Mennonite University for renewal of license for station WEMC- FM, Harrisonburg, Virginia, IS GRANTED. Sincerely, W. Kenneth Ferree Chief, Media Bureau 4