Federal Communications Commission DA 13-1920 Before the Federal Communications Commission Washington, D.C. 20554 In re Application of S G Communications, Inc. For Renewal of License for Station DWHEW(AM) Franklin, Tennessee ) ) ) ) ) ) ) Facility I.D. No. 681 NAL/Acct. No. MB-201341410015 FRN: 0006320048 File No. BR-20120829AEX MEMORANDUM OPINION AND ORDER AND NOTICE OF APPARENT LIABILITY FOR FORFEITURE Adopted: September 18, 2013 Released: September 18, 2013 By the Chief, Audio Division, Media Bureau: I. INTRODUCTION 1. The Media Bureau (“Bureau”) has before it the application of S G Communications, Inc. (“Licensee”), for renewal of its license for Station DWHEW(AM), Franklin, Tennessee (“Station”). In this Memorandum Opinion and Order and Notice of Apparent Liability for Forfeiture (“NAL”),1 we find that Licensee apparently willfully violated Section 73.3539 of the Rules,2 by failing to file a timely license renewal application for the Station, and apparently willfully and repeatedly violated Section 301 of the Act,3 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 Licensee is apparently liable for a monetary forfeiture in the amount of seven thousand dollars ($7,000). 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.”4 An application for renewal of the Station’s license should have been filed by April 1, 2012.5 No such application was filed, and the Station’s license expired on August 1, 2012. Accordingly, on August 27, 2012, the staff wrote to Licensee, indicating that the Station’s license had expired and that: (1) all authority to operate the Station was terminated; and (2) the Station’s call letters had been deleted from the Commission’s data base. Licensee was advised that any 1 This NAL is issued pursuant to Sections 309(k) and 503(b) of the Communications Act of 1934, as amended (“Act”), and Section 1.80 of the Commission’s rules (“Rules”). See 47 U.S.C. §§ 309(k), 503(b); 47 C.F.R. § 1.80. The Bureau has delegated authority to issue the NAL under Section 0.283 of the Rules. See 47 C.F.R. § 0.283. 2 See 47 C.F.R. § 73.3539. 3 See 47 U.S.C. § 301. 4 47 C.F.R. § 73.3539(a). 5 As a courtesy, the Bureau staff contacted Licensee’s principal, Salvador Guzman, several times during the month of April 2012 to advise him that a renewal application for the Station’s license was overdue. Despite these efforts, Licensee did not file the renewal application until August 29, 2012. Federal Communications Commission DA 13-1920 2 operation of the station was then unauthorized and must cease immediately.6 Upon receipt of the License Expiration Letter, on August 31, 2012, Licensee tendered the captioned renewal application and a request for Special Temporary Authority (“STA”) to continue station operations pending consideration of the license renewal application.7 The staff granted the STA Request on October 1, 2012, and it expired on March 30, 2013.8 Licensee did not seek an extension of its STA, nor did it request an additional STA to maintain Station operations. Licensee has not provided an explanation for its failure to file a timely renewal application for the Station. III. DISCUSSION 3. Proposed Forfeiture. In this case, Licensee has failed to file a timely license renewal application for Station DWHEW(AM), as required by Section 73.3539(a) of the Rules. Moreover, it continued operating the Station after the license had expired on August 1, 2012, before filing the appropriate renewal application and 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, Licensee did not do so. 4. This NAL is issued pursuant to Section 503(b)(1)(B) of the Act. Under that provision, a person who is found 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.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 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 6 Letter to SG Communications, Inc., from James Bradshaw (MB Aug. 27, 2012) (“License Expiration Letter”). 7 See File No. BLSTA-20120831AAO (“STA Request”). 8 Letter to S G Communications, Ref. 1800B3 (MB Oct. 1, 2012). 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), recon. denied, 7 FCC Rcd 3454 (1992). 14 47 U.S.C. § 312(f)(2). 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. Federal Communications Commission DA 13-1920 3 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, Licensee failed to file a timely renewal application and continued Station operations for almost a month after its license had expired on August 1, 2012, before filing the appropriate renewal application and STA Request. It also allowed its STA to expire and has continued operating the station for five months without authorization. Nevertheless, because it had previously been licensed to operate the Station, 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 propose a forfeiture for the full $3,000 amount for the failure to file a timely renewal application and STA request, but reduce the proposed forfeiture for the unauthorized operation from the $10,000 base amount to $4,000.18 Thus, we propose a forfeiture in the total amount of $7,000.19 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 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 Licensee’s apparent violation 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, based on our review of the Station’s license renewal application, we find that Station DWHEW(AM) served the public interest, convenience, and necessity during the subject license term. We will, therefore, reinstate the Station’s call sign, and we will grant the captioned license renewal 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., Discussion Radio Incorporated, Memorandum Opinion and Order, 19 FCC Rcd 7433, 7438 (2004); Gospel Media, Inc., Letter, 19 FCC Rcd 15600 (MB 2004). 19 See, e.g., Central University of Iowa Central College, Memorandum Opinion and Order and Notice of Apparent Liability, 22 FCC Rcd 2757 (MB 2007) ($7,000 forfeiture proposed for five months of unauthorized operations before filing STA, and five additional months of unauthorized operations following expiration of STA). 20 47 U.S.C. § 309(k). 21 47 U.S.C. § 309(k)(1). 22 47 U.S.C. §§ 309(k)(2), 309(k)(3). 23 For example, we do not find here that 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." Id. 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 13-1920 4 application by separate action upon the conclusion of this forfeiture proceeding if there are no issues other than the apparent violation that would preclude grant of the application. 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 S G Communications is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of seven thousand dollars ($7,000) for its apparent willful violation of Section 73.3539 of the Commission’s Rules and its apparent willful and repeated violation of Section 301 of the Communications Act. 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, S G Communications, 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). Licensee will also send electronic notification on the date said payment is made to Penelope.Dade@fcc.gov and Alexander.Sanjenis@fcc.gov. 12. The response, if any, must be mailed to Office of the Secretary, Federal Communications Commission, 445 12th Street, S.W., Washington DC 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, Federal Communications Commission, 445 12th Street, S.W., Room 1-A625, Washington, DC 20554.24 15. IT IS FURTHER ORDERED that the call sign WHEW(AM) IS REINSTATED. 24 See 47 C.F.R. § 1.1914. Federal Communications Commission DA 13-1920 5 16. IT IS FURTHER ORDERED that a copy of this NAL shall be sent, by First Class and Certified Mail-Return Receipt Requested, to S G Communications, 1429 Governors Ridge Court, Franklin, TN 37064. FEDERAL COMMUNICATIONS COMMISSION Peter H. Doyle Chief, Audio Division Media Bureau