Federal Communications Commission DA 10-392 Before the Federal Communications Commission Washington, D.C. 20554 In re Application of James K. Sharp For Renewal of License for Station WDJL(AM) Huntsville, Alabama ) ) ) ) ) ) ) Facility I.D. No. 23088 NAL/Acct. No. MB-201041410001 FRN: 0012363032 File No. BR-20090902ABJ MEMORANDUM OPINION AND ORDER AND NOTICE OF APPARENT LIABILITY FOR FORFEITURE Adopted: March 8, 2010 Released: March 9, 2010 By the Chief, Audio Division, Media Bureau: I. INTRODUCTION 1. The Commission has before it the captioned application of James K. Sharp (the “Licensee”), for renewal of his license for noncommercial educational Station WDJL(AM), Huntsville, Alabama (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, Audio Division, Media Bureau, by authority delegated under Section 0.283 of the Rules,2 we find that the Licensee apparently willfully violated Section 73.3539 of the Rules,3 by failing to file a timely license renewal application for the Station, and apparently willfully and repeatedly violated Section 301 of the Act,4 by engaging in unauthorized operation of the Station after its authorization had expired. 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 five thousand five hundred dollars ($5,500), and we grant the captioned WDJL(AM) 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.”5 An application for renewal of WDJL(AM)’s license should have been filed by December 1, 2003, four months prior to the Station’s April 1, 2004, license expiration date, but was not. In fact, the Licensee did not file a renewal application until March 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 See 47 U.S.C. § 301. 5 47 C.F.R. § 73.3539(a). Federal Communications Commission DA 10-392 2 26, 2004.6 This application was dismissed on April 20, 2007, under the Commission’s “red light” rules, which prohibit the staff from granting an application when an applicant is delinquent on debts owed to the Commission.7 The Licensee subsequently satisfied his delinquent debt and, on September 2, 2009, the Licensee filed the captioned license renewal application. The Licensee did not file a request for Special Temporary Authorization (“STA”) to continue Station operation after its 2004 Application was dismissed.8 III. DISCUSSION 3. Proposed Forfeiture. In this case, the Licensee has failed to file a timely license renewal application for WDJL(AM) as required by Section 73.3539(a) of the Rules. Moreover, it continued Station operation for more than two years after its 2004 Application was dismissed on April 20, 2007, before filing the appropriate renewal application, never seeking STA to so operate, in violation of Section 301 of the Act. Licensees are obligated to comply fully with the Rules, including filing a timely renewal application and maintaining in effect the station’s authorization.9 Here, the Licensee did not do so. 4. 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 failed willfully or repeatedly 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 See File No. BR-20040326ACP. (the “2004 Application”). 7 James K. Sharp, Letter (MB Apr. 20, 2007). See Amendment of Parts 0 and 1 of the Commission’s Rules – Implementation of the Debt Collection Improvement Act of 1996 and Adoption of Rules Governing Applications or Requests for Benefits by Delinquent Debtors, Report and Order, 19 FCC Rcd 6540 (2004). See also 47 C.F.R. §§ 0.283, 1.1910(b)(3). 8 Because the 2004 Application was filed prior to the expiration of the Station’s license, no STA to continue station operations was necessary during the period when that application was pending before the Commission. 9 See, e.g, Hemmingford Media, Inc., Forfeiture Order, 14 FCC Rcd 2940, 2941-2 (CIB 1999) (responsibility for complying with terms of station license “rests solely and exclusively with the licensee”) (citing Empire Broadcasting Corp., Memorandum Opinion and Order, 25 FCC 2d 68 (1970)). 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, 97th 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). Federal Communications Commission DA 10-392 3 5. The Commission's Forfeiture Policy Statement and Section 1.80(b)(4) of the Rules establish a base forfeiture amount of $3,000 for the failure to file a required form.15 The guidelines also specify a base forfeiture amount of $10,000 for construction and/or operation without an instrument of authorization for the service.16 In determining the appropriate forfeiture amount, we may adjust the base 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.”17 6. In this case, the Licensee initially failed to file a timely renewal application and continued Station operations for more than two years after its original license renewal application had been dismissed before initially filing another renewal application, never seeking STA to continue station operations. Nevertheless, because it had previously been licensed to operate Station WDJL(AM), the latter transgression is not comparable to "pirate" wireless operations, which typically have been subject to forfeitures of approximately $10,000. Taking into consideration these facts 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 from the $3,000 base amount to $1,500 for the failure to file a timely renewal application,18 and we will reduce the proposed forfeiture for the unauthorized operation from the $10,000 base amount to $4,000.19 Thus, we propose a forfeiture in the total amount of $5,500. 7. License Renewal Application. In evaluating an application for license renewal, the Commission’s decision is governed by Section 309(k) of the Act.20 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 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 A broadcast station requires an authorization from the Commission to operate. See 47 U.S.C. § 301. 17 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). 18 See, e.g., Bible Broadcast Church School, Forfeiture Order, DA 10-344, 25 FCC Rcd ___ (MB Feb. 26, 2010) ($1,500 forfeiture imposed for filing renewal application after filing deadline but before the station’s license expired); Southern Broadcasting Corporation, Forfeiture Order, DA 09-2455, 24 FCC Rcd 13883 (MB 2009) (same). 19 See, e.g., WBLB, Inc., Memorandum Opinion and Order and Notice of Apparent Liability, 22 FCC Rcd 7522 (MB 2007) ($4,000 forfeiture proposed for station operating for two months after its license had expired before filing license renewal application and request for STA to continue station operations and subsequently for nearly three years after its STA had expired); Trustees, Carroll College, Memorandum Opinion and Order and Notice of Apparent Liability, 22 FCC Rcd 4492 (MB 2007) ($4,000 forfeiture proposed for station operating for more than one year after its license had expired before filing license renewal application and for more than 16 months before filing a request for STA to continue station operations). See also James K. Rouse, Memorandum Opinion and Order and Notice of Apparent Liability, 23 FCC Rcd 5602 (MB 2008) ($13,000 forfeiture proposed for filing renewal application after the station’s license had expired and for several “extended periods of unauthorized operation” after the original untimely renewal application was dismissed under the “red light” program); The Minority Voice, Inc.¸ Memorandum Opinion and Order and Notice of Apparent Liability, 23 FCC Rcd 5607 (MB 2008) (same). 20 47 U.S.C. § 309(k). Federal Communications Commission DA 10-392 4 the renewal application.21 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.”22 8. We find that the Licensee’s violations of Section 73.3539 of the Rules and Section 301 of the Act do not constitute “serious violations” warranting designation for evidentiary hearing. Moreover, we find no evidence of violations that, when considered together, constitute a pattern of abuse.23 Further, we find that Station WDJL(AM) served the public interest, convenience, and necessity during the subject license term. Given that the Licensee has satisfied its delinquent debt to the Commission, we will grant the license renewal application below. IV. ORDERING CLAUSES 9. 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 James K. Sharp is hereby NOTIFIED of his APPARENT LIABILITY FOR FORFEITURE in the amount of five thousand five hundred dollars ($5,500) for his apparent willful violation of Section 73.3539 of the Commission’s Rules and apparent willful and repeated violation of Section 301 of the Communications Act of 1934, as amended. 10. 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, James K. Sharp SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. 11. 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). 21 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). 22 47 U.S.C. §§ 309(k)(2), 309(k)(3). 23 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 10-392 5 12. 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. 13. 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. 14. 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. 20554.24 15. IT IS FURTHER ORDERED, pursuant to Section 309(k) of the Communications Act of 1934, as amended, that the license renewal application of James K. Sharp for Station WDJL(AM), Huntsville, Alabama (File No. BR-20090902ABJ) IS GRANTED. 16. IT IS FURTHER ORDERED that a copy of this NAL shall be sent, by First Class and Certified Mail-Return Receipt Requested, to Mr. James K. Sharp, 2310 Whitesburg Drive, Suite 7, Huntsville, Alabama 35801. FEDERAL COMMUNICATIONS COMMISSION Peter H. Doyle Chief, Audio Division Media Bureau 24 See 47 C.F.R. § 1.1914.