Federal Communications Commission DA 07-249 Before the Federal Communications Commission Washington, D.C. 20554 In re Application of Milwaukee Board of School Directors For Renewal of License for Station WYMS(FM) Milwaukee, Wisconsin ) ) ) ) ) ) ) Facility I.D. No. 42669 NAL/Acct. No. MB200741410026 FRN: 0007556996 File No. BRED-20040730ASB MEMORANDUM OPINION AND ORDER AND NOTICE OF APPARENT LIABILITY FOR FORFEITURE Adopted: January 25, 2007 Released: January 29, 2007 By the Chief, Media Bureau: I. INTRODUCTION 1. The Commission has before it the captioned application of Milwaukee Board of School Directors (the “Licensee”) for renewal of its license for Station WYMS(FM), Milwaukee, Wisconsin (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 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 73.3527 of the Rules3 by failing to retain all required documentation in the WYMS(FM) 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 one thousand dollars ($1,000), and we grant the captioned WYMS(FM) renewal application. II. BACKGROUND 2. Section 73.3527 of the Rules requires a noncommercial educational 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 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. § 73.3527. 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)). Federal Communications Commission DA 07-249 2 3. Section III, Item 3 of the WYMS(FM) license renewal application form, FCC Form 303-S, requests that the licensee certify that the documentation required by Section 73.3527 has been placed in the station’s public inspection file at the appropriate times. The Licensee indicated “No” to that certification and attached an amended Exhibit 11 to the application,5 explaining that: While station files were being moved in June 2004 due to renovations at the radio station, the boxes containing the station’s quarterly issues/programs reports for the current license term were inadvertently disposed of by the cleaning crew, and could not be reclaimed. The station has been unable to replicate such reports from other sources. Station personnel have confirmed to the licensee that, notwithstanding that the quarterly issues/programs reports were inadvertently disposed in June 2004, such reports had been generated on a quarterly basis and had been placed in the station’s public file throughout the subject license term as required by Section 73.3527 of the Commission’s Rules. Consequently, when the renewal application was submitted at the end of July 2004, such issues/programs reports had been missing from the file only since June 2004.6 III. DISCUSSION 4. Proposed Forfeiture. As the Licensee has acknowledged, at the time of filing of the WYMS(FM) license renewal application, the Station’s public inspection file did not contain many of the items required to be retained in the file and during periods within the license term by Section 73.3527 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.7 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.8 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.9 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,10 and the Commission has so interpreted the term in the Section 503(b) context.11 Section 312(f)(2) of the Act provides that “[t]he term ‘repeated,’ when used with 5 The Licensee amended its renewal application on December 6, 2005. 6 Id. 7 See Padre Serra Communications, Inc., Letter, 14 FCC Rcd 9709 (MMB 1999)(citing Gaffney Broadcasting, Inc., 23 FCC 2d 912, 913 (1970) and Eleven Ten Broadcasting Corp., Notice of Apparent Liability, 33 FCC 706 (1962)); Surrey Front Range Limited Partnership, Notice of Apparent Liability, 71 RR 2d 882 (FOB 1992). 8 47 U.S.C. § 503(b)(1)(B). See also 47 C.F.R. § 1.80(a)(1). 9 47 U.S.C. § 312(f)(1). 10 See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982). 11 See Southern California Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991). Federal Communications Commission DA 07-249 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.”12 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 Section 73.3527.13 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.”14 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 captioned license renewal application that compelled such disclosure. However, the violations occurred for only a brief period of no more than one month, although they involved issues/programs lists covering nearly the entire license term. We also credit the Licensee’s representation that the requisite issues/programs lists were generated and timely placed in the WYMS(FM) public inspection file, although they were later misplaced and could not be located or reconstructed. Considering the record as a whole, we believe that a $1,000 forfeiture is appropriate for the violation in this case.15 Accordingly, we find that the Licensee is apparently liable for a forfeiture in the amount of $1,000 for its apparent willful and repeated violation of Section 73.3527. 8. License Renewal Application. In evaluating an application for license renewal, the Commission’s decision is governed by Section 309(k) of the Act.16 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.17 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.”18 9. We find that the Licensee’s apparent violations of Section 73.3527 of the Rules do 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.19 Further, we find that 12 47 U.S.C. § 312(f)(2). 13 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. 14 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). 15 See The Trustees of Davidson College, Forfeiture Order, 20 FCC Rcd 17190 (MB 2005). 16 47 U.S.C. § 309(k). 17 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). 18 47 U.S.C. §§ 309(k)(2), 309(k)(3). 19 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 (continued....) Federal Communications Commission DA 07-249 4 Station WYMS(FM) 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 Milwaukee Board of School Directors is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of one thousand dollars ($1,000) for its apparent willful and repeated violation of Section 73.3527 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, Milwaukee Board of School Directors 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 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. 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. 20554.20 16. IT IS FURTHER ORDERED, that, pursuant to Section 309(k) of the Communications Act of 1934, as amended, that the license renewal application of Milwaukee Board of School Directors (File No. BRED-20040730ASB) IS GRANTED. (...continued from previous page) 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). 20 See 47 C.F.R. § 1.1914. Federal Communications Commission DA 07-249 5 17. IT IS FURTHER ORDERED that copies of this NAL shall be sent, by First Class and Certified Mail, Return Receipt Requested, to Milwaukee Board of School Directors, 5225 W. Vliet Street, Room 10, Milwaukee, Wisconsin 53208, and to its counsel, Marissa G. Repp, Esq., Hogan & Hartson LLP, 555 13th Street, NW, Washington, D.C. 20004-1109. FEDERAL COMMUNICATIONS COMMISSION Monica Shah Desai Chief, Media Bureau