Federal Communications Commission DA 10-673 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Bible Broadcasting Network, Inc. Licensee of FM Translator Station W201BW Hopkinsville, Kentucky ) ) ) ) ) ) Facility ID No. 89006 NAL/Acct. No. MB-200741410311 FRN: 0006373559 File No. BRFT-20040730ADB FORFEITURE ORDER Adopted: April 20, 2010 Released: April 21, 2010 By the Chief, Audio Division, Media Bureau: I. INTRODUCTION 1. In this Forfeiture Order, we issue a monetary forfeiture in the amount of two hundred and fifty dollars ($250) to Bible Broadcasting Network, Inc. (“BBN”), licensee of FM translator station W201BW, Hopkinsville, Kentucky (“Station”), for willfully violating Section 73.3539 of the Commission’s Rules (“Rules”) by failing to timely file a license renewal application for the Station.1 II. BACKGROUND 2. On June 25, 2007, the Bureau issued a Notice of Apparent Liability for Forfeiture (“NAL”) in the amount of two hundred and fifty dollars ($250) to BBN for this violation.2 As noted in the NAL, BBN’s renewal application for the Station’s license term was due on April 1, 2004, four months prior to the August 1, 2004, expiration date.3 BBN did not file the application until July 30, 2004. BBN explained that the untimely filing was “wholly inadvertent.”4 BBN submitted a “Response to Notice of Apparent Liability for Forfeiture and Petition for Reconsideration” (“Response”) on July 25, 2007. 3. In its Response, BBN states that its failure to timely file the renewal application was unintentional. BBN further claims that the Commission improperly imposed a forfeiture for untimeliness, arguing that Section 1.80 of the Rules prescribes a forfeiture for failure to file a required form, rather than failure to timely file a required form. It further asserts that its failure to timely file the license renewal application was neither willful nor repeated. BBN also argues that the Commission improperly dismissed its request for waiver of Section 73.3539 of the Rules, asserting that if the Commission had waived the Rule, it could not have found BBN apparently liable for its violation. Finally, while BBN does not claim inability to pay, it states that the Commission should take into account the fact that BBN is a noncommercial educational broadcaster. BBN asserts these reasons warrant a cancellation or reduction of the assessed forfeiture. 1 47 C.F.R. § 73.3539. 2 Bible Broadcasting Network, Inc., Memorandum Opinion and Order and Notice of Apparent Liability for Forfeiture, 22 FCC Rcd 11445 (MB 2007). The Commission granted the license renewal application on June 25, 2007. 3 See 47 C.F.R. §§ 73.1020, 73.3539(a). 4 See Exhibit 30 of the captioned application. Federal Communications Commission DA 10-673 2 III. DISCUSSION 4. 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 5. BBN does not dispute that it failed to file a timely renewal application for the Station, but states that this violation was “wholly inadvertent.”9 As the Commission has held, however, violations resulting from inadvertent error are willful violations.10 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 the action in question, irrespective of any intent to violate the Rules.11 BBN has failed to justify why departure from this precedent is warranted. 6. We also reject BBN’s argument that Section 1.80 of the Rules constrains the Commission to impose forfeiture orders to instances in which applications are not filed at all, as opposed to untimely- filed applications.12 It is well-settled that the Commission may impose a forfeiture for a late-filed renewal application.13 7. We also disagree with BBN’s assertion that the Commission should have granted its Section 73.3539 waiver request. In its application, BBN stated, “the applicant requests, to the extent necessary, a waiver of Section 73.3539 of the Rules and any other applicable rules to permit acceptance 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). 9 Response at 2. 10 See PJB Communications of Virginia, Inc., Memorandum Opinion and Order, 7 FCC Rcd 2088 (1992); See 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”). 11 See Five Star Parking d/b/a Five Star Taxi Dispatch, Forfeiture Order, 23 FCC Rcd 2649, 2651 (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) (“ignorance of or unfamiliarity with the Commission’s requirements is not a mitigating factor and does not warrant a forfeiture reduction”); National Weather Networks, Inc., Notice of Apparent Liability for Forfeiture, 21 FCC Rcd 3922, 3925 (EB 2006) (“negligence does not mitigate a Commission rule violation”). 12 Response at 3. 13 See, e.g., See Discussion Radio, Inc., Memorandum Opinion and Order and Notice of Apparent Liability, 19 FCC Rcd 7433, 7441 (2004), modified, Memorandum Opinion and Forfeiture Order, 24 FCC Rcd 2206 (MB 2009) (finding that licensee was liable for a monetary forfeiture for violating of Section 73.3539 by failing to timely file a license renewal application); Good News Translator Assoc., Memorandum Opinion and Notice of Apparent Liability for Forfeiture, 22 FCC Rcd 20922 (MB 2007) (finding that license was liable for a monetary forfeiture of $250 for violating of Section 73.3539 by failing to timely file a license renewal application for its translator station). Federal Communications Commission DA 10-673 3 and consideration of this application at this time.”14 The Bureau has previously declined to act on similar requests for waivers of Section 73.3539 while still accepting and processing the untimely license renewal application.15 Thus, it was not necessary to waive Section 73.3539 to process BBN’s late renewal application here. The staff therefore committed a harmless error in failing to address and dismiss BBN’s waiver request in the NAL. 8. Although BBN “does not contend that it is unable to pay the forfeiture” it notes that “the Bureau did not apparently take into account that BBN is a noncommercial educational broadcaster” and that “the funds will come from listener donations that could better be used in the operations of the network.”16 It is established Commission policy that there is no proposed forfeiture exemption or reduction based on the noncommercial status of a station.17 We therefore decline to reduce the forfeiture amount based on BBN’s noncommercial status. 9. We have considered BBN’s Response and the record of this case in light of the above statutory factors, our Rules, and the Forfeiture Policy Statement. We conclude that BBN willfully18 violated Section 73.3539 of the Rules and that no mitigating circumstances warrant cancellation or further reduction of the proposed forfeiture amount.19 IV. ORDERING CLAUSES 10. 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,20 that Bible Broadcasting Network, Inc. SHALL FORFEIT to the United States the sum of two hundred and fifty dollars ($250) for willfully violating Section 73.3539 of the Commission’s Rules. 14 See File No. BRFT-20040730ADB at Exhibit 31. 15 See, e.g., Family Radio, Inc., Notice of Apparent Liability for Forfeiture, 22 FCC Rcd 4108, 4109 n 6. (MB 2007) (“In light of the acceptance and grant of the application, we need not act on the waiver request.”). We acknowledge that the Bureau failed to explain in the NAL that consideration of BBN’s waiver request was not necessary. 16 Response at 4. 17 See, e.g., Des Moines Independent Community School District, Memorandum Opinion and Order, 24 FCC Rcd 3869, 3871 (MB 2009) (rejecting licensee's argument that its forfeiture should be cancelled or reduced because of its noncommercial educational status). See also Lebanon Educational Broadcasting Foundation, Memorandum Opinion and Order, 21 FCC Rcd 1442, 1446 (EB 2006) (“Where the Rule is violated, Section 1.80 provides that a monetary forfeiture may be imposed, and there is no exemption or reduction based on the noncommercial status of a station.”). 18 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. 19 A forfeiture amount of two hundred fifty dollars ($250) is proper, given the Commission's recent decisions assessing forfeitures in the amount of $250 against licensees of translator stations for violations of Section 73.3539 of the Rules, based on the station’s status as a provider of secondary FM translator service. See, e.g., Valley Baptist Church and Christian School, Forfeiture Order, 23 FCC Rcd 8740 (MB 2008) (reducing sua sponte forfeiture amount from $1,500 to $250 for translator station licensee’s late renewal application filing); Good News Translator Assoc., Memorandum Opinion and Order and Notice of Apparent Liability for Forfeiture, 22 FCC Rcd 20922 (MB 2007) (finding translator licensee apparently liable for monetary forfeiture in the amount of $250 for its willful violation of Section 73.3539 of the Rules). 20 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.283, 1.80. Federal Communications Commission DA 10-673 4 11. 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.21 Payment of the 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).22 Licensee will also send electronic notification on the date said payment is made to Kelly.Donohue@fcc.gov and Alexander.Sanjenis@fcc.gov. Requests for payment of the full amount of the forfeiture under an installment plan should be sent to: Associate Managing Director-Financial Operations, Room 1-A625, 445 12th Street, S.W., Washington, D.C. 20554.23 12. 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 Bible Broadcasting Network, Inc., c/o Lowell L. Davey, 11530 Carmel Commons Boulevard, Charlotte, NC 28226, and its counsel, Gary S. Smithwick, Smithwick & Belendiuk, P.C., 5028 Wisconsin Avenue, N.W., Suite 301, Washington, D.C. 20016. FEDERAL COMMUNICATIONS COMMISSION Peter H. Doyle Chief, Audio Division Media Bureau 21 47 U.S.C. § 504(a). 22 See 47 C.F.R. § 1.1914. 23 Id.