Federal Communications Commission DA 09-1284 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Florala Broadcasting Company Licensee of Station WKWL(AM) Florala, Alabama ) ) ) ) ) ) Facility ID No. 21743 NAL/Acct. No. MB2006414140098 File No. BR-20040219ABI FRN: 0005039508 FORFEITURE ORDER Adopted: June 4, 2009 Released: June 5, 2009 By the Chief, Audio Division, Media Bureau: I. INTRODUCTION 1. In this Forfeiture Order (“Order”), we issue a monetary forfeiture in the amount of one thousand five hundred dollars ($1,500) to Florala Broadcasting Company (“ Licensee”), licensee of Station WKWL(AM), Florala, Alabama (“Station”), for willfully and repeatedly violating Section 73.3539 of the Commission’s Rules (“Rules”) and Section 301 of the Communications Act of 1934, as amended (“Act”) by failing to timely file a license renewal application.1 II. BACKGROUND 2. On January 29, 2007, the Bureau issued a Notice of Apparent Liability for Forfeiture (“NAL”) to Licensee in the amount of one thousand five hundred dollars ($1,500) for violations at Station WKWL(AM).2 Licensee filed a Request for Cancellation or Reduction of Proposed Forfeiture (“Request”) on February 26, 2007. 3. Licensee’s renewal application for the Station for the current license term should have been filed on December 1, 2003, four months prior to the April 1, 2004, expiration date,3 but was not. In fact, Licensee did not file the renewal application until February 19, 2004. Licensee provided no explanation for its failure to timely file the WKWL(AM) license renewal application. On January 29, 2007, the staff advised Licensee of its apparent liability for a forfeiture of $1,500 for failure to timely file Station WKWL(AM)’s renewal application.4 In response, Licensee filed the subject Request. 4. In support of its Request, Licensee states that: (1) its failure to timely file the renewal application was inadvertent; and (2) it is financially unable to pay the proposed forfeiture. Licensee asserts that these reasons warrant a cancellation or reduction of the assessed forfeiture. 1 47 C.F.R. § 73.3539; 47 U.S.C. § 301. 2 Florala Broadcasting Company, Memorandum Opinion and Order and Notice of Apparent Liability for Forfeiture, 22 FCC Rcd 1123 (MB 2007). 3 See 47 C.F.R. §§ 73.1020, 73.3539(a). 4 The WKWL(AM) renewal application was granted on January 29, 2007. Federal Communications Commission DA 09-1284 2 III. DISCUSSION 5. The forfeiture amount proposed in this case was assessed in accordance with Section 503(b) of the Act,5 Section 1.80 of the Rules,6 and the Commission’s Forfeiture Policy Statement.7 In assessing forfeitures, Section 503(b)(2)(E) of the Act requires that we take into account 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.8 6. Licensee does not dispute that it failed to file a timely renewal application for the Station, but states that this violation was unintentional. Specifically, Licensee states that it mistakenly believed that the application was due on April 1, 2004. However, as the Commission has held, violations resulting from inadvertent error or failure to become familiar with the FCC's requirements are willful violations.9 In the context of a forfeiture action, “willful” does not require a finding that the rule violation was intentional. Rather, the term “willful” means that the violator knew that it was taking (or in this case, not taking) the action in question, irrespective of any intent to violate the Rules.10 7. Licensee next asks us to cancel the forfeiture “due to the Hardship Rule,” claiming that because the Station is located in a small town with a median family income of less than $20,000 it has “a very small financial base with which to operate.”11 While it is unclear to which Rule Licensee refers, these are essentially arguments to support a claim of financial hardship. The Commission will not consider reducing or canceling a forfeiture in response to inability to pay unless the licensee 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 reflect the licensee’s current financial status. Here, Licensee has only made unsubstantiated claims that payment of the forfeiture would cause it financial hardship, and has failed to provide us with any documentation regarding its finances. We find this information alone is an insufficient basis on which to assess Licensee’s inability to pay.12 Accordingly, in the absence of sufficient information to support a decision to the contrary, we decline to cancel or reduce the proposed forfeiture on the basis of inability to pay. 5 47 U.S.C. § 503(b). 6 47 C.F.R. § 1.80. 7 The Commission’s Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines, Report and Order, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999). 8 47 U.S.C. § 503(b)(2)(E). 9See Southern California Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4387 (1991), recon. denied, 7 FCC Rcd 3454 (1992) (“Southern California”) (stating that “inadvertence … is at best, ignorance of the law, which the Commission does not consider a mitigating circumstance”); Standard Communications Corp., Memorandum Opinion and Order, 1 FCC Rcd 358 (1986) (stating that “employee acts or omissions, such as clerical errors in failing to file required forms, do not excuse violations”). 10 See Five Star Parking d/b/a Five Star Taxi Dispatch, Forfeiture Order, 23 FCC Rcd 2649 (EB 2008) (declining to reduce or cancel forfeiture for late-filed renewal based on licensee’s administrative error); Southern California, 6 FCC Rcd at 4387. See also Domtar Industries, Inc., Notice of Apparent Liability for Forfeiture, 21 FCC Rcd 13811, 13815 (EB 2006); National Weather Networks, Inc., Notice of Apparent Liability for Forfeiture, 21 FCC Rcd 3922, 3925 (EB 2006). 11 Request at 1. 12 See Wayne State College, Forfeiture Order, 24 FCC Rcd 2484 (MB 2009) (rejecting licensee’s financial hardship argument, finding that a one-page document summarizing its station budget and no information about licensee’s finances was an insufficient basis on which to assess the licensee’s inability to pay); Washington and Lee University, Forfeiture Order, 23 FCC Rcd 15821 (MB 2008) (same). Federal Communications Commission DA 09-1284 3 8. We have considered Licensee’s response to the NAL in light of the above statutory factors, our Rules, and the Forfeiture Policy Statement. We conclude that Licensee willfully13 and repeatedly14 violated Section 73.3539 of the Rules and Section 301 of the Act,15 and that no mitigating circumstances warrant cancellation or further reduction of the proposed forfeiture amount. IV. ORDERING CLAUSES 9. Accordingly, IT IS ORDERED, pursuant to Section 503(b) of the Communications Act of 1934, as amended, and Sections 0.283 and 1.80 of the Commission’s Rules,16 that Florala Broadcasting Company., SHALL FORFEIT the sum of one thousand five hundred dollars ($1,500) to the United States for willfully and repeatedly violating Section 73.3539 of the Commission’s Rules and Section 301 of the Communications Act of 1934, as amended. 10. Payment of the forfeiture shall be made in the manner provided for in Section 1.80 of the Commission's Rules within 30 days of the release of this Forfeiture Order. If the forfeiture is not paid within the period specified, the case may be referred to the Department of Justice for collection pursuant to Section 504(a) of the Act.17 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 in the caption above. Payment by check or money order may be mailed to Federal Communications Commission, at P.O. Box 979088, St. Louis, MO 63197-9000. Payment by overnight mail may be sent to U.S. Bank—Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may be made to ABA Number 021030004, receiving bank: TREAS NYC, BNF: FCC/ACV--27000001 and account number as expressed on the remittance instrument. If completing the FCC Form 159, enter the NAL/Account number in block number 23A (call sign/other ID), and enter the letters “FORF” in block number 24A (payment type code).18 11. IT IS FURTHER ORDERED, that a copy of this Forfeiture Order shall be sent by Certified Mail Return, Receipt Requested, and by First Class Mail to: Florala Broadcasting Company, c/o Robert Williamson, P.O. Box 159, Florala, Alabama 36442. FEDERAL COMMUNICATIONS COMMISSION Peter H. Doyle Chief, Audio Division Media Bureau 13 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. 47 U.S.C. § 312(f)(1). The legislative history of Section 312(f)(1) of the Act clarifies that this definition of willful applies to Sections 312 and 503(b) of the Act, H.R. REP. No. 97- 765, 51 (Conf. Rep.), and the Commission has so interpreted the terms in the Section 503(b) context. See Southern California, 6 FCC Rcd at 4387-88. 14 Section 312(f)(1) of the Act defines “repeated” as “the commission or omission of [any] act more than once or, if such commission or omission is continuous, for more than one day.” 47 U.S.C. § 312(f)(1). See also Southern California, 6 FCC Rcd at 4388 (applying this definition of repeated to Sections 312 and 503(b) of the Act). 15 47 U.S.C. § 301. 16 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.283, 1.80. 17 47 U.S.C. § 504(a). 18 See 47 C.F.R. § 1.1914.