*Pages 1--5 from Microsoft Word - 57566.doc* Federal Communications Commission DA 06- 1210 Before the Federal Communications Commission Washington, D. C. 20554 In re Application of David Ryder, Receiver For Renewal of License for Station WMEL( AM) Melbourne, Florida ) ) ) ) ) ) ) Facility I. D. No. 68615 NAL/ Acct. No. MB200641410037 FRN: 0013835343 File No: BR- 20050613AFB MEMORANDUM OPINION AND ORDER AND NOTICE OF APPARENT LIABILITY FOR FORFEITURE Adopted: June 6, 2006 Released: June 8, 2006 By the Chief, Media Bureau: I. INTRODUCTION 1. The Commission has before it the captioned application of David Ryder, Receiver (the “Licensee”) for renewal of the expired license for Station WMEL( AM), Melbourne, Florida (the “Station”). In this Memorandum Opinion and Order and Notice of Apparent Liability for Forfeiture (“ NAL”) issued pursuant to Sections 309( k) and 503( b) of the Communications Act of 1934, as amended (the “Act”), and Section 1.80 of the Commission’s Rules (the “Rules”) 1 by the Commission, by the Chief, Media Bureau by authority delegated under Section 0.283 of the Rules, 2 we find that the Licensee apparently willfully and repeatedly violated Section 73.3539 of the Rules by failing to timely file a license renewal application for the Station. 3 Based upon our review of the facts and circumstances before us, we conclude that the Licensee is apparently liable for a monetary forfeiture in the amount of one thousand five hundred dollars ($ 1,500), and we grant the captioned WMEL( AM) license renewal application. II. BACKGROUND 2. Section 73.3539( a) of the Rules requires that applications for renewal of license for broadcast stations must be filed “not later than the first day of the fourth full calendar month prior to the expiration date of the license sought to be renewed.” 4 An application for renewal of WMEL( AM) ’s license should have been filed by October 1, 2003, four months prior to the Station’s February 1, 2004 license expiration date. 5 The previous WMEL( AM) licensee, Twin Towers Broadcasting, Inc. (“ Twin Towers”), filed an (untimely) renewal application on January 21, 2004, prior to the expiration of the license; 6 this application was dismissed on January 28, 2005, pursuant to the Commission’s “Red Light” 1 47 U. S. C. §§ 309( k), 503( b); 47 C. F. R. § 1. 80. 2 See 47 C. F. R. § 0.283. 3 See 47 C. F. R. § 73. 3539. 4 47 C. F. R. § 73.3539( a). 5 See 47 C. F. R. §§ 73. 1020, 73.3539( a). 6 File No. BR- 20030121ABI. 1 Federal Communications Commission DA 06- 1210 2 debt collection program. 7 Twin Towers advises that, upon learning of the dismissal of the WMEL( AM) license renewal application, it sought the advice of communications counsel and ultimately filed the captioned license renewal application and a request for special temporary authorization (“ STA”) to operate the Station pending consideration of the renewal application. The staff granted the STA request on July 12, 2005. 8 3. Thereafter, Twin Towers defaulted on certain financial obligations and was placed under state court- ordered receivership, with Mr. David Ryder appointed as Receiver. Mr. Ryder filed a pro forma application seeking Commission consent to his acquisition of the WMEL( AM) license and assets on July 14, 2005, 9 which the staff granted on July 29, 2005. Mr. Ryder subsequently filed a timely request for extension of STA to continue WMEL( AM) operations on January 4, 2006; that STA extension request remains pending. III. DISCUSSION 4. Proposed Forfeiture. In this case, neither the original license renewal application filed by Twin Towers on January 21, 2004 nor its subsequent renewal application filed on June 13, 2005 was timely under Section 73.3539 of the Rules. Accordingly, whether or not the Commission grants review of the Managing Director’s dismissal of the January 21, 2004 license renewal application, Twin Towers violated that rule by failing to timely file the license renewal application for Station WMEL( AM). 5. This NAL is issued pursuant to Section 503( b)( 1)( B) of the Act. Under that provision, any person who is determined by the Commission to have willfully or repeatedly failed to comply with any provision of the Act or any rule, regulation, or order issued by the Commission shall be liable to the United States for a forfeiture penalty. 10 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. 11 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, 12 and the Commission has so interpreted the term in the Section 503( b) context. 13 Section 312( f)( 2) 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.” 14 6. The Commission’s Forfeiture Policy Statement and Section 1.80( b)( 4) of the Rules 7 See Amendment of the Debt Collection Improvement Act of 1996 and Adoption of Rules Governing Applications or Requests for Benefits by Delinquent Debtors, 19 FCC Rcd 6549 (2004). Twin Towers sought reconsideration of that dismissal, which was denied by the Office of Managing Director on May 13, 2005. Letter to Peter Tannenwald, Esq. (OMD May 13, 2005). Twin Towers filed an Application for Review of that decision on June 16, 2005, which remains pending. 8 Letter to Peter Tannenwald, Esq., Reference 1800B3 (MB July 12, 2005). 9 File No. BAL- 20050714ACP. 10 47 U. S. C. § 503( b)( 1)( B). See also 47 C. F. R. § 1.80( a)( 1). 11 47 U. S. C. § 312( f)( 1). 12 See H. R. Rep. No. 97- 765, 97 th Cong. 2d Sess. 51 (1982). 13 See Southern California Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991). 14 47 U. S. C. § 312( f)( 2). 2 Federal Communications Commission DA 06- 1210 3 establish a base forfeiture amount of $3000 for the failure to file a required form. 15 In determining the appropriate forfeiture amount, we must consider the factors enumerated in Section 503( b)( 2)( D) of the Act, including “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 such other matters as justice may require.” 16 7. In this case, whether or not the Commission grants review of the Managing Director’s dismissal of the January 21, 2004 license renewal application, because that application was late- filed, Twin Towers failed to timely file the WMEL( AM) license renewal application. Taking into consideration these facts, including the fact that the renewal application was filed prior to expiration of the Station’s license and the appointment of Mr. Ryder as court- appointed Receiver, and all of the factors required by Section 503( b)( 2)( D) of the Act and the Forfeiture Policy Statement, we will reduce the proposed forfeiture to $1,500 for the late filing. 17 We will not excuse the violation, because licensees are responsible for the timely submission of required forms, and untimely renewal applications disrupt the orderly processing of renewal applications in accordance with Section 73.1020 of the Rules. However, we will not impose any additional forfeiture for unauthorized operation, because the January 21, 2004 renewal application was filed prior to the expiration of the WMEL( AM) license, and its dismissal is not final. Therefore, we will not consider the WMEL( AM) operations beyond the February 1, 2004 license expiration date to be unauthorized. Accordingly, we find that the Licensee is apparently liable for a forfeiture in the amount of $1,500 for its apparent willful and repeated violation of Section 73.3539 of the Rules. 8. License Renewal Application. In evaluating an application for license renewal, the Commission’s decision is governed by Section 309( k) of the Act. 18 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 Act or the Rules; and (3) there have been no other violations which, taken together, constitute a pattern of abuse, we are to grant the renewal application. 19 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 the application “on terms and conditions that are appropriate, including a renewal for a term less than the maximum otherwise permitted.” 20 9. We find that the Licensee’s apparent violation of Section 73.3539 of the Rules does not constitute a “serious violation” warranting designation for evidentiary hearing. Moreover, we find no evidence of violations that, when considered together, evidence a pattern of abuse. 21 Further, we find that 15 See Forfeiture Policy Statement and Amendment of Section 1. 80( b) of the Rules to Incorporate the Forfeiture Guidelines, Report and Order, 12 FCC Rcd 17087, 17113- 15 (1997) (“ Forfeiture Policy Statement”), recon. denied, 15 FCC Rcd 303 (1999); 47 C. F. R. § 1.80( b)( 4), note to paragraph (b)( 4), Section I. 16 47 U. S. C. § 503( b)( 2)( D); see also Forfeiture Policy Statement, 12 FCC Rcd at 17100; 47 C. F. R. § 1.80( b)( 4). 17 See Discussion Radio, Inc., Memorandum Opinion and Order, 19 FCC Rcd 7433 (2004) at ¶ 15. 18 47 U. S. C. § 309( k). 19 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 Implementation of Sections 204( a) and 204( c) of the Telecommunications Act of 1996 (Broadcast License Renewal Procedures), Order, 11 FCC Rcd 6363 (1996). 20 47 U. S. C. §§ 309( k)( 2), 309( k)( 3). 21 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 FCC 2d 196, 198 (1971). Nor do we find on the (continued....) 3 Federal Communications Commission DA 06- 1210 4 Station WMEL( AM) served the public interest, convenience, and necessity during the subject license term. We will therefore grant the license renewal application below. IV. ORDERING CLAUSES 10 Accordingly, IT IS ORDERED, pursuant to Section 503( b) of the Communications Act of 1934, as amended, and Section 1.80 of the Commission’s Rules, that David Ryder, Receiver is hereby NOTIFIED of his APPARENT LIABILITY FOR FORFEITURE in the amount of $1, 500 for the apparent willful and repeated violation of Section 73.3539 of the Commission’s Rules. 11. IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission’s Rules, that, within thirty (30) days of the release date of this NAL, David Ryder, Receiver, SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. 12. Payment of the proposed forfeiture must be made by check or similar instrument, payable to the order of the Federal Communications Commission. The payment must include the NAL/ Acct. No. and FRN No. referenced above. Payment by check or money order may be mailed to Federal Communications Commission, at P. O. Box 358340, Pittsburgh, Pennsylvania 15251- 8340. Payment by overnight mail may be sent to Mellon Bank/ LB 358340, 500 Ross Street, Room 1540670, Pittsburgh, Pennsylvania 15251. Payment by wire transfer may be made to ABA Number 043000261, receiving bank Mellon Bank, and account number 911- 6106. 13. The response, if any, must be mailed to Office of the Secretary, Federal Communications Commission, 445 12 th Street, S. W., Washington D. C. 20554, ATTN: Peter H. Doyle, Chief, Audio Division, Media Bureau, and MUST INCLUDE the NAL/ Acct. No. referenced above. 14. The Commission will not consider reducing or canceling a forfeiture in response to a claim of inability to pay unless the respondent 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 respondent’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. 15. Requests for full payment of the forfeiture proposed in this NAL under the installment plan should be sent to: Associate Managing Director- Financial Operations, 445 12th Street, S. W., Room 1- A625, Washington, D. C. 20554. 22 16. IT IS FURTHER ORDERED that, pursuant to Section 309( k) of the Communications Act of 1934, as amended, the license renewal application of David Ryder, Receiver for Station WMEL( AM), Melbourne, Florida (File No. BR- 20050613AFB) IS GRANTED. (... continued from previous page) 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 FCC 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).\ 22 See 47 C. F. R. § 1.1914. 4 Federal Communications Commission DA 06- 1210 5 17. IT IS FURTHER ORDERED that copies of this NAL shall be sent, by First Class and Certified Mail, Return Receipt Requested, to David Ryder, Receiver, Suite 435, 4630 North University Drive, Coral Springs, Florida 33067 and to his counsel, Peter Tannenwald, Esq., Irwin Campbell & Tannenwald, 1730 Rhode Island Avenue, N. W., Washington, DC 20036- 3120. FEDERAL COMMUNICATIONS COMMISSION Donna C. Gregg Chief, Media Bureau 5