Federal Communications Commission DA 07-1964 Before the Federal Communications Commission Washington, D.C. 20554 In re Application of Eastern Illinois Christian Broadcasting, Inc. For Renewal of License for Station WEIC(AM) Charleston, Illinois ) ) ) ) ) ) ) Facility I.D. No. 12485 NAL/Acct. No. MB200741410320 FRN: 0005000088 File No. BR-20040727ACZ MEMORANDUM OPINION AND ORDER AND NOTICE OF APPARENT LIABILITY FOR FORFEITURE Adopted: May 1, 2007 Released: May 3, 2007 By the Associate Chief, Media Bureau: I. INTRODUCTION 1. The Commission has before it the captioned application of Eastern Illinois Christian Broadcasting, Inc. (the “Licensee”) for renewal of its license for Station WEIC(AM), Charleston, Illinois (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 Associate 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 73.3526 of the Rules3 by failing to retain all required documentation in the WEIC(AM) public inspection file. 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 ten thousand dollars ($10,000), and we grant the captioned WEIC(AM) renewal application. II. BACKGROUND 2. Section 73.3526 of the Rules requires a commercial broadcast licensee 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.4 Among the materials required for inclusion in the file are the station’s quarterly issues/programs lists, which must be retained until final Commission action on the station’s next license renewal application.5 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. § 73.3526. 4 Cf. Letter to Kathleen N. Benfield from Linda B. Blair, Chief, Audio Services Division, 13 FCC Rcd 4102 (MMB 1997) (citing License Renewal Applications of Certain Commercial Radio Stations, Memorandum Opinion and Order, 8 FCC Rcd 6400 (MMB 1993)). 5 See 47 C.F.R. 73.3526(e)(12). Federal Communications Commission DA 07-1964 2 3. Section III, Item 3 of the WEIC(AM) license renewal application form, FCC Form 303-S, requests that the licensee certify that the documentation required by Section 73.3526 has been placed in its station’s public inspection file at the appropriate times. The Licensee indicated “No” to that Item, explaining in Exhibit 11 that: The WEIC public inspection file is complete with the exception of the community issues lists and the file of programs aired responsive to the community issues. Specifically, issues and programs lists have not been located for the following periods: 1996, 1997, quarters 3 and 4, 1999; quarters 2 and 4, 2001; quarters 1 and 2, 2002; quarter 4, 2003; and quarter 1, 2004. The missing materials may exist, but the family6 has not been able to locate them. The president of Eastern Illinois Christian Broadcasting, Inc., Gary Lee, passed away on May 15, 2003, after a long illness. Subsequent to his death, the family contacted FCC counsel asking for assistance with the estate matters pertaining to the radio station and the FCC license. The family was not involved in the business of the station and was completely unfamiliar with the station’s operations. . . . It is entirely possible that the missing files do exist, and the family is attempting to locate those files. However, at the time of this application, those files had not been found. . . . The WEIC public file is now available in electronic format and is regularly updated by FCC counsel. This on-going public inspection file maintenance program will prevent documents from becoming misplaced and will insure that all required documents are placed into the file in a timely manner. . . .7 III. DISCUSSION 4. Proposed Forfeiture. As the Licensee has acknowledged, during periods within the license term, the Station’s public inspection file did not contain many of the items required to be retained in the file by Section 73.3526 of the Rules. In this regard, where lapses occur in maintaining the public file, 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.8 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.9 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.10 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,11 and the Commission has so interpreted the term in the Section 503(b) context.12 Section 312(f)(2) of the Act provides that “[t]he term ‘repeated,’ when used with 6 Gary Lee and his wife Norma each held a 50 per cent interest in the Licensee. Upon Mr. Lee’s death, Mrs. Lee gained a 100 per cent interest in the Licensee. See File No. BTC-20030903AAK, granted routinely by the staff on September 9, 2003. 7 See captioned application, Exhibit 11. 8 See Padre Serra Communications, Inc., Letter, 14 FCC Rcd 9709 (MMB 1999)(citing Gaffney Broadcasting, Inc., Memorandum Opinion and Order, 23 FCC 2d 912, 913 (1970) and Eleven Ten Broadcasting Corp., Notice of Apparent Liability, 33 FCC 706 (1962)); Surrey Front Range Limited Partnership, Letter, 7 FCC Rcd 6361 (FOB 1992). 9 47 U.S.C. § 503(b)(1)(B). See also 47 C.F.R. 1.80(a)(1). 10 47 U.S.C. § 312(f)(1). 11 See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982). 12 See Southern California Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991). Federal Communications Commission DA 07-1964 3 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.”13 6. The Commission’s Forfeiture Policy Statement and Section 1.80(b)(4) of the Rules establish a base forfeiture amount of $10,000 for violation of the public file rule.14 In determining the appropriate forfeiture amount, we may adjust the amount upward or downward by considering 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.”15 7. In this case, although the Licensee has admitted to the violations, it did so only in the context of the question contained in its license renewal application that compelled such disclosure. Moreover, the violations were extensive, occurring over virtually all of the license term and involving 16 missing issues/programs lists.16 While we are not unsympathetic to the serious medical difficulties faced by Mr. Lee, resulting in his untimely death, unless the record indicates that Mr. Lee’s medical difficulties were “disabling,” we can find no reason why the Licensee should not be penalized for its failure to have complied with the Rules.17 We also note that the Mr. Lee was not a novice licensee, but rather, an experienced broadcaster who should have been more prepared to handle the Station’s operations in the event of unforeseen circumstances. As for the remedial action the Licensee has taken, the Commission has stated, “corrective action taken to come into compliance with Commission rules or policy is expected, and does not nullify or mitigate any prior . . . violations.”18 13 47 U.S.C. § 312(f)(2). 14 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. 15 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). 16 Because Mrs. Lee held a 50 per cent interest in the Licensee at the beginning of the license term and involuntarily acquired a 100 per cent interest in 2003, we are holding the Licensee accountable for violations that occurred throughout the eight-year license period. See n.6, supra. 17 Compare instant case with cases where the Commission terminated with no sanction, even in proceedings where basic character qualification issues were raised, where it finds that a licensee principal’s physical and mental illness is disabling and would likely impair the person’s ability to appear and participate in an evidentiary hearing. See, e.g., Lois I. Pingree, Executrix, Memorandum Opinion and Order, FCC 2d 2179 (1978) (hearing proceeding terminated when disability which precluded hearing participation and that disability was responsible for underlying misconduct; stations permitted to be sold at no profit to wrongdoer); Hertz Broadcasting of Birmingham, Inc., Memorandum Opinion and Order, 47 FCC Rcd 183 (1976) (evidentiary hearing terminated on basis of principals disabling mental illness; licenses renewed and stations permitted to be sold for no profit) ; Tinker, Inc., Memorandum Opinion and Order, 8 FCC 2d 22 (1967) (proceeding commenced with Order to Show Cause terminated on basis of principal’s physical disabilities and stations permitted to be sold for no profit). See also Carolyn C. Murphy, Memorandum Opinion and Order, 42 FCC 2d 346 (1973) (Commission finds that licensee’s illness diminished her responsibility for her actions; stations permitted to be sold for no profit). Benefit from the sale of the station here is not a factor because the Commission favors relief in situations involving the death of a principal. See, e.g., Friendly Broadcasting Company, Memorandum Opinion and Order, 90 FCC Rcd 225 (1982), citing Happy Valley Radio, Inc.¸ Memorandum Opinion and Order, 68 FCC 2d 1516, 1518-9 (1978) (hearing proceeding terminated, license renewal granted where principal’s death relieved him of any sanction the Commission might impose). 18 Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099 (1994). See also AT&T Wireless Services Inc., Forfeiture Order, 17 FCC Rcd 21866, 21875 (2002); and Callais Cablevision, Inc., NALF, 17 FCC Rcd 22626, 22629 (2002). Federal Communications Commission DA 07-1964 4 8. Considering the record as a whole, we believe that a $10,000 forfeiture is appropriate for the violations in this case. Accordingly, we find that the Licensee is apparently liable for a forfeiture in the amount of $10,000 for its apparent willful and repeated violation of Section 73.3526. 9. License Renewal Application. In evaluating an application for license renewal, the Commission’s decision is governed by Section 309(k) of the Act.19 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.20 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.”21 10. We find that the Licensee’s apparent violations of Section 73.3526 of the Rules do not constitute “serious violations” warranting designation for evidentiary hearing. Moreover, we find no evidence of violations that, when considered together, evidence a pattern of abuse.22 Further, we find that Station WEIC(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 11. 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 Eastern Illinois Christian Broadcasting, Inc. is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of ten thousand dollars ($10,000) for its apparent willful and repeated violation of Section 73.3526 of the Commission’s Rules. 12. 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, Eastern Illinois Christian Broadcasting, Inc. SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. 13. 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 19 47 U.S.C. § 309(k). 20 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). 21 47 U.S.C. §§ 309(k)(2), 309(k)(3). 22 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, Decision, 32 FCC 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 FCC 2d at 200. See also Center for Study and Application of Black Economic Development, Hearing Designation Order, 6 FCC Rcd 4622 (1991), Calvary Educational Broadcasting Network, Inc., Hearing Designation Order, 7 FCC Rcd 4037 (1992). Federal Communications Commission DA 07-1964 5 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. 14. The response, if any, must be mailed to Office of the Secretary, Federal Communications Commission, 445 12th 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. 15. 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. 16. 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. 20554.23 17. IT IS FURTHER ORDERED pursuant to Section 309(k) of the Communications Act of 1934, as amended, that the license renewal application of Eastern Illinois Christian Broadcasting, Inc. for Station WEIC(AM), Charleston, Illinois (File No. BR-20040727ACZ) IS GRANTED. 18. IT IS FURTHER ORDERED that copies of this NAL shall be sent, by First Class and Certified Mail, Return Receipt Requested, to Eastern Illinois Christian Broadcasting, Inc., 2560 W. State St., Charleston, Illinois 61920, and to its counsel, Richard J. Hayes, Jr., Esquire, 8404 Lee’s Ridge Road, Warrenton, Virginia 20186. FEDERAL COMMUNICATIONS COMMISSION William D. Freedman Associate Chief, Media Bureau 23 See 47 C.F.R. § 1.1914.