Federal Communications Commission	DA 19-933

Before the
Federal Communications Commission
Washington, D.C. 20554

In the Matter of

HUBBARD’S ADVERTISING
AGENCY, INC.

Application for Renewal of License for
Station WLLL(AM)
Lynchburg, Virginia
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NAL/Acct. No. MB-201941410004
FRN:  0006184048
Facility ID No. 17409
File No. 0000072723


MEMORANDUM OPINION AND ORDER 
AND NOTICE OF APPARENT LIABILITY FOR FORFEITURE

Adopted: September 20, 2019	Released: September 20, 2019

By the Chief, Audio Division, Media Bureau:

I. INTRODUCTION
1. The Media Bureau (Bureau) has before it the application, as amended (Application), File No. 0000072723, as amended on June 14, 2019. 	  
 of Hubbard’s Advertising Agency, Inc. (Licensee), for renewal of license for Station WLLL(AM), Lynchburg, Virginia (Station).  In this Memorandum Opinion and Order and Notice of Apparent Liability for Forfeiture (NAL), 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 FCC’s rules (Rules).  See 47 U.S.C. §§ 309(k), 503(b); 47 CFR § 1.80.  The Bureau has delegated authority to issue the NAL under Section 0.283 of the FCC’s rules.  See 47 CFR § 0.283.  
 we find that Licensee apparently willfully and repeatedly violated:  (1)  Section 73.3526(e)(12) See 47 CFR § 73.3526(e)(12).
 of the Rules by failing to prepare required quarterly issues and programs lists; and (2) Section 73.3526(b)(2) See 47 CFR § 73.3526(b)(2).
 of the Rules by failing to upload this information into the Station’s online public inspection file (OPIF).  Based upon review of the record before us, we conclude that Licensee is apparently liable for a monetary forfeiture in the amount of fifteen thousand dollars ($15,000) and that the captioned license renewal application should be granted for a period of two years instead of a full term of eight years. 
II. BACKGROUND
2. Section 73.3526 of the Rules requires commercial broadcast licensees to maintain a public inspection file containing specific types of information related to station operations.  Section 73.3526(e)(12) requires every commercial broadcast radio licensee to place in its public file, on a quarterly basis, an issues and programs list which details programs that have provided the station’s most significant treatment of community issues during the preceding three-month period and must include a brief narrative of the issue addressed, as well as the time, date, duration, and title of each program that addressed the issue. See 47 CFR § 73.3526(e)(12).
  The issues and programs lists must be placed in the Station’s public file by the tenth day of the succeeding calendar quarter and must be retained until final action on the station’s next license renewal application. Id.
  
3. In 2012, the Commission amended section 73.3526(b)(2) of the Rules (OPIF Rule) to require broadcast television stations to upload public file documents to the Commission’s online public inspection file database. See Standardized and Enhanced Disclosure Requirements for Television Broadcast Licensee Public Interest Obligations, Second Report and Order, 27 FCC Rcd 4535 (2012) (Second R&O). 
  The Commission adopted the OPIF Rule to modernize the way television broadcasters inform the public about their service to their community, increase accessibility of this information to the public, and reduce the cost of compliance with the public file requirements. Id. at 4536, para. 1.  
  In 2016, the Commission expanded the OPIF Rule to require all broadcast radio licensees to transition their public inspection files to the Commission’s OPIF database. Expansion of Online Public File Obligations to Cable and Satellite TV Operators and Broadcast and Satellite Radio Licensees, Report and Order, 31 FCC Rcd 526 (2016) (Expanded Online Public File Order). 
  By March 1, 2018, all broadcast radio stations  were required to post all public file material, except political file material created before March 1, 2018. Between June 2016 and March 1, 2018, broadcast radio licensees were phased into compliance with the OPIF Rule.  All non-commercial educational radio broadcast stations, commercial radio broadcast stations in the top 50 markets with fewer than five fulltime employees, and all commercial radio broadcast stations in markets below the top 50 or outside all markets were required to place public file materials in the OPIF for any material created after March 1, 2018.  These stations may voluntarily upload political file material created before March 1, 2018 or retain them locally for the mandatory two-year retention period.  Id. at 537-539.  All other stations were required to begin using the public file by June 24, 2016.  See Effective Date Announced for Expanded Online Public Inspection File Database, Public Notice, 31 FCC Rcd 4699 (MB 2016).  Because these stations have been required to use the OPIF for more than three years, all political file material for these stations should now be in their OPIF.
  Thereafter, in public notices, the Bureau has reminded broadcast radio licensees of their OPIF obligation. See e.g. Media Bureau Reminds Radio Broadcasters of Online Public File Requirements Media Bureau Will Activate All Remaining Accounts on November 15, 2018, Public Notice, 33 FCC Rcd 11059 (MB 2018); Media Bureau Reminds Broadcast Licensees of Upcoming Radio Station License Renewal Cycle, Public Notice, 34 FCC Rcd 1344 (MB 2019), and Media Bureau Announces Procedures for 2019-2022 Radio Renewal Cycle, Public Notice, 34 FCC Rcd 2304 (MB 2019).
      
4. Section III, Item 3 of the license renewal application form requires that the licensee certify that the documentation required by section 73.3526 has been placed in the station’s public inspection file at the appropriate times.  Licensee answered “No” to that certification and attached an amended exhibit explaining that:
The sole principal of the licensee, Fletcher Hubbard, who has operated the Station almost entirely on his own is 92 years old and is not ‘computer literate.’  He did not understand how [to] access WLLL’s on line public file let alone how to upload documents to the file.  He is also unsure as to whether he prepared Annual [sic] Issues and Programs lists and placed them in the station’s local public inspection file during the period following the station’s last renewal and the date by which all such lists were to have been uploaded to WLLL’s on line public file.  His adult children who recently begun to assist him in the operation of the station have searched for such issues and programs lists and were unable to find any.  Going forward the licensee’s children intend to make certain that the station complies with all FCC requirements including up loading issues and programs lists to the station’s public file when due. Application, Exhibit to Section III, Question 1, as amended on June 14, 2019.
  
A Commission staff review has confirmed that Licensee has failed to place any issues and programs lists into the Station’s OPIF. 
III. DISCUSSION
5. Proposed Forfeiture.  As Licensee has acknowledged, issues and programs lists were not prepared and uploaded into the Station’s OPIF as required by sections 73.3526(e)(12) and 73.3526(b)(2) See 47 CFR §§ 73.3526(e)(12) and 73.3526(b)(2).
 of the Rules.  Where such lapses occur, 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. See Padre Serra Commc’ns, Inc., Letter, 14 FCC Rcd 9709 (MMB 1999).
  
6. Under section 503(b)(1)(B) of the Act, 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. 47 U.S.C. § 503(b)(1)(B).  See also 47 CFR §1.80(a)(1).
  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 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, See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).
 and the Commission has so interpreted the term in the section 503(b) context. See Southern California Broad. Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388, para.5 (1991).
  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.” 47 U.S.C. § 312(f)(2). 
  
7. The Commission’s Forfeiture Policy Statement and section 1.80(b)(5) of the Rules establish a base forfeiture amount of $10,000 for failure to maintain a station’s public file and $3,000 for failure to file required information. 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 CFR § 1.80(b)(8), note to paragraph (b)(8), Section I.
  In determining the appropriate forfeiture amount, we may adjust the 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.” 47 U.S.C. § 503(b)(2)(D); see also Forfeiture Policy Statement, 12 FCC Rcd at 17100-17101, para. 27; 47 CFR § 1.80(b)(4).

8. Based on our review of the facts and circumstances, we find that a $15,000 forfeiture is appropriate.  We find that a forfeiture in the amount of $12,000 is appropriate for the Licensee’s failure to prepare any quarterly issues and programs lists during the license term as required by section 73.3526(e)(12) of the Rules. See, e.g., Cumulus Licensing, LLC, Memorandum Opinion and Order and Notice of Apparent Liability, 33 FCC Rcd 1201 (MB 2018) ($12,000 forfeiture proposed for failure to prepare 22 issues and programs lists).
  In this case, although Licensee admitted to violating section 73.3526(e)(12), it did so only in the context of the question contained in the Application that compelled such disclosure.  We further note that Licensee has a history of failing to maintain a public inspection file. See WLLL(AM), Lynchburg, Virginia, Notice of Apparent Liability for Forfeiture, 25 FCC Rcd 4753, 4754 para 9 (EB 2010) ( “Hubbard's owner admitted that he had never maintained a public inspection file, nor did he know what documents were required to be in the file.”).
  Moreover, based on Licensee’s acknowledgement that no quarterly issues and programs lists could be found, the Station’s public file violations were extensive and not remediable, and apparently encompassed the two successive license terms.  In addition, we find that a forfeiture in the amount of $3,000 is appropriate for Licensee’s failure to upload issues and programs lists into the Station’s OPIF as required by section 73.3526(b)(2) See 47 CFR § 73.3526(b)(2).
 of the Rules. See, e.g., Pollack/Belz Broad. Co., Memorandum Opinion and Order and Notice of Apparent Liability, 32 FCC Rcd 4105 (MB 2017) ($3,000 forfeiture proposed for failure to upload required public file documents into Station’s OPIF).
  Notwithstanding the Licensee principal’s advanced age, it is a licensee’s responsibility to comply with Commission Rules.  Accordingly, we find that, considering the record as a whole, a $15,000 forfeiture is appropriate for the violations in this case. 
9. License Renewal Application. In evaluating an application for license renewal, the Commission's decision is governed by section 309(k) of the Act. 47 U.S.C. § 309(k). 
  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 FCC’s rules; and (3) there have been no other violations which, taken together, constitute a pattern of abuse, we are to grant the renewal application. 47 U.S.C. § 309(k)(1).
  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.” 47 U.S.C. §§ 309(k)(2), 309(k)(3). 

10. It is clear to us that Licensee’s conduct has fallen far short of the standard of compliance with the Act and the FCC’s rules that would warrant a routine license renewal.  Licensee apparently failed to timely prepare and file any issues and programs lists and to upload this information into the Station’s OPIF.  The issues and programs lists are a significant and representative indication that a licensee is providing substantial service to meet the needs and interests of its community. See Formulation of Policies and Rules to Broadcast Renewal Applicants, Third Further Notice of Inquiry and Notice of Proposed Rule Making, 4 FCC Rcd 6363, 6365, para. 17 (1989).
  In addition, the Commission's OPIF Rule safeguards the public's ability to assess the station's service and to meaningfully participate in the station's renewal process, and ensure the station's accessibility to and nexus with its community, to serve and respond to community programming needs. See Forfeiture Policy Statement, 12 FCC Rcd at 17104-05, para. 39.
  As such, the public information requirements are integral components of a licensee's obligation to serve the public interest and meet its community service obligations.
11. We believe that Licensee’s violations of sections 73.3526(e)(12) and 73.3526(b)(2) of the Rules See 47 CFR § 73.3526(b)(2).
 were “serious” violations, See 47 U.S.C. § 309(k)(1)(b).
 as they denied both the public and the Commission any opportunity to review and comment on the Station’s programming during the past license term.  The record here further indicates that these willful and repeated violations, when considered together, constitute a pattern of abuse over a number of years – apparently at least two full license terms -- by Licensee. See 47 U.S.C. § 309(k)(1)(c).
  However, although we are concerned with Licensee’s failure to create required quarterly issues and programs lists, and to upload these lists into the Station’s OPIF, we find that Licensee’s violations of the Rules do not rise to such a level that designation for evidentiary hearing on the issue of whether to deny renewal for the Station is warranted. We do not find that Licensee’s operation of the Station “was conducted in an exceedingly careless, inept and negligent manner and that Licensee is either incapable of correcting or unwilling to correct the operating deficiencies.”  Heart of the Black Hills Stations, Decision, 32 FCC 2d 196, 198, para. 6 (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, para. 10.
  
12. On the facts presented here, we conclude that a short-term license renewal is the appropriate sanction.  We believe that additional measures are necessary in order to ensure that Licensee endeavors in the future to provide the broadcast service it is licensed to provide and comply with its obligations as a licensee.  Accordingly, pursuant to section 309(k)(2) of the Act, we will grant the Station a short-term license renewal by separate action upon the conclusion of this forfeiture proceeding, if there are no issues other than the apparent violations addressed herein that would preclude such a grant of the Application. See 47 U.S.C. § 309(k)(2).
  The new license term will be limited to a period of two years. See, e.g., Rama Commc’ns, Inc., Memorandum Opinion and Order and Notice of Apparent Liability, 31 FCC Rcd 6939 (MB 2016) (two-year renewal granted for failing to prepare  issues and programs lists during the license term).
  This limited renewal period will afford the Commission an opportunity to review the Station’s compliance with the Act and the FCC’s rules and to take whatever corrective actions, if any, that may be warranted at that time.  
IV. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED, pursuant to section 503(b) of the Communications Act of 1934, as amended, and section 1.80 of the FCC’s rules, that Hubbard’s Advertising Agency, Inc., is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of fifteen  thousand dollars ($15,000) for its apparent willful and repeated violations of sections 73.3526(e)(12) and 73.3526(b)(2) of the Rules.
14. IT IS FURTHER ORDERED, pursuant to section 1.80 of the FCC’s rules, that, within thirty (30) days of the release date of this NAL, Hubbard’s Advertising Agency, Inc., SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture.
15. Payment of the Civil Penalty must be made by credit card, ACH (Automated Clearing House) debit from a bank account using the Commission’s Fee Filer (the Commission’s online payment system), Payments made using the Commission’s Fee Filer system do not require the submission of an FCC Form 159.
 or by wire transfer.  The Commission no longer accepts Civil Penalty payments by check or money order.  Below are instructions that payors should follow based on the form of payment selected: For questions regarding payment procedures, please contact the Financial Operations Group Help Desk by phone at 1-877-480-3201 (option #6), or by e-mail at ARINQUIRIES@fcc.gov.
 
· Payment by wire transfer must be made to ABA Number 021030004, receiving bank TREAS/NYC, and Account Number 27000001.  A completed Form 159 must be faxed to the Federal Communications Commission at 202-418-2843 or e-mailed to RROGWireFaxes@fcc.gov on the same business day the wire transfer is initiated.  Failure to provide all required information in Form 159 may result in payment not being recognized as having been received.  When completing FCC Form 159, enter the Account Number in block number 23A (call sign/other ID), enter the letters “FORF” in block number 24A (payment type code), and enter in block number 11 the FRN(s) captioned above (Payor FRN). Instructions for completing the form may be obtained at http://www.fcc.gov/Forms/Form159/159.pdf. 
  For additional detail and wire transfer instructions, go to https://www.fcc.gov/licensing-databases/fees/wire-transfer.  
· Payment by credit card must be made by using the Commission’s Fee Filer website at https://apps.fcc.gov/FeeFiler/login.cfm.  To pay by credit card, log-in using the FRN captioned above.  If payment must be split across FRNs, complete this process for each FRN.  Next, select “Pay bills” on the Fee Filer Menu,  and select the bill number associated with the NAL Account – the bill number is the NAL Account number with the first two digits excluded. – and then choose the “Pay by Credit Card” option.  Please note that there is a dollar limitation on credit card transactions, which cannot exceed $24,999.99.
· Payment by ACH must be made by using the Commission’s Fee Filer website at https://apps.fcc.gov/FeeFiler/login.cfm.  To pay by ACH, log in using the FRN captioned above.  If payment must be split across FRNs, complete this process for each FRN.  Next, select “Pay bills” on the Fee Filer Menu and then select the bill number associated to the NAL Account – the bill number is the NAL Account number with the first two digits excluded – and choose the “Pay from Bank Account” option.  Please contact the appropriate financial institution to confirm the correct Routing Number and the correct account number from which payment will be made, and verify with that financial institution that the designated account has authorization to accept ACH transactions.
16. The response, if any, must be mailed to Office of the Secretary, Federal Communications Commission, 445 12th Street, S.W., Washington DC 20554, ATTN:  Albert Shuldiner, Chief, Audio Division, Media Bureau, and MUST INCLUDE the NAL/Acct. No. referenced above.
17. 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. 
18. 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, DC 20554. See 47 CFR. § 1.1914.
	
19. IT IS FURTHER ORDERED that a copy of this Order shall be sent, by First Class and Certified Mail, Return Receipt Requested, to Licensee’s counsel, David Tillotson, Esq., Law Office of David Tillotson, 4606 Charleston Terrace, N.W., Washington, DC 20007.
						FEDERAL COMMUNICATIONS COMMISSION



						Albert Shuldiner
						Chief, Audio Division
						Media Bureau
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