Federal Communications Commission Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of R-S Broadcasting Company, Inc. Licensee of Radio Station WCWV Facility ID # 54368 Summersville, West Virginia ) ) ) ) ) ) ) File Number: EB-08-CF-0311 NAL/Acct. No.: 200932340002 FRN: 0009053117 NOTICE OF APPARENT LIABILITY FOR FORFEITURE Released: June 5, 2009 By the Acting District Director, Columbia Field Office, Northeast Region, Enforcement Bureau: I. INTRODUCTION 1. In this Notice of Apparent Liability for Forfeiture (“NAL”), we find that R-S Broadcasting Company, Inc. (“R-S Broadcasting”), licensee of station WCWV, in Summersville, West Virginia, apparently willfully and repeatedly violated Section 73.3526(e)(12) of the Commission's Rules (“Rules”)1 by failing to maintain radio issues/programs lists in the station’s public inspection file. We conclude, pursuant to Section 503(b) of the Communications Act of 1934, as amended (“Act”),2 that R-S Broadcasting is apparently liable for a forfeiture in the amount of ten thousand dollars ($10,000). II. BACKGROUND 2. On July 22, 2008, the Columbia Field Office received information regarding possible violations at station WCWV. In response, agents from the Columbia Field Office scheduled an inspection of station WCWV for August 15, 2008. 3. On August 15, 2008, agents conducted an inspection at WCWV’s main studio in Summersville, WV with the station’s owner. While at the main studio, the agents reviewed the contents of the public inspection file and found that the public inspection file was missing some components. Specifically, the last date for the radio issues/programs lists was in 2002. R-S Broadcasting is required to maintain in the public inspection file all quarterly radio issues/programs lists since the grant of the latest WCWV renewal application. WCWV’s most recent license renewal was granted on September 25, 2003. In its renewal application, R-S Broadcasting certified in response to Section III, Question 3, that the public inspection file for WCWV had the proper documentation as required by 73.3526.3 III. DISCUSSION 4. Section 503(b) of the Act provides that any person who willfully or repeatedly fails to comply 1 47 C.F.R. § 73.3526(e)(12). 2 47 U.S.C. § 503(b). 3 See File No. BRH-20030602CAD filed June 3, 2003. Federal Communications Commission 2 substantially with the terms and conditions of any license, or willfully or repeatedly fails to comply with any of the provisions of the Act or of any rule, regulation or order issued by the Commission thereunder, shall be liable for a forfeiture penalty. The term “willful” as used in Section 503(b) has been interpreted to mean simply that the acts or omissions are committed knowingly.4 The term “repeated” means the commission or omission of such act more than once or for more than one day.5 5. Section 73.3526(e)(12) of the Rules requires AM and FM broadcast licensees to place in their public inspection file, for each quarter, a list of programs that have provided the station’s most significant treatment of community issues during the preceding three month period.6 This list is known as the radio issues/programs list. R-S Broadcasting is required to maintain in WCWV’s public inspection file all quarterly radio issues/programs lists since the grant date of the latest WCWV renewal application, which occurred on September 25, 2003. During an inspection on August 15, 2008, agents found that R-S Broadcasting had not placed in its public inspection file any issues/programs lists during the current license term. R-S Broadcasting was aware of the requirement to have a complete public inspection file, given its 2003 certification in the WCWV renewal application that it was in full compliance with the public inspection file rules. We therefore conclude that the violation was willful. Because the violation occurred on more than one day, the violation was repeated. 6. Based on the evidence before us, we find that R-S Broadcasting apparently willfully and repeatedly violated Section 73.3526(e)(12) of the Rules by failing to maintain radio issues/programs lists in the station’s public inspection file. 7. Pursuant to The Commission’s Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines, (“Forfeiture Policy Statement”), and Section 1.80 of the Rules, the base forfeiture amount for violation of the public file rule is $10,000.7 In assessing the monetary forfeiture amount, we must also take into account the statutory factors set forth in Section 503(b)(2)(E) of the Act, which include the nature, circumstances, extent, and gravity of the violations, and with respect to the violator, the degree of culpability, and history of prior offenses, ability to pay, and other such matters as justice may require.8 Applying the Forfeiture Policy Statement, Section 1.80 of the Rules, and the statutory factors to the instant case, we conclude that R-S Broadcasting is apparently liable for a ten thousand dollar ($10,000) forfeiture. IV. ORDERING CLAUSES 8. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the Communications Act of 1934, as amended, and Sections 0.111, 0.311, 0.314 and 1.80 of the Commission's Rules, R-S Broadcasting Company, Inc. is hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of ten thousand dollars ($10,000) for violations of Section 73.3526(e)(12) of the Rules.9 4 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which applies to violations for which forfeitures are assessed under Section 503(b) of the Act, provides that “[t]he term ‘willful’, when used with reference to the commission or omission of any act, means the conscious and deliberate commission or omission of such act, irrespective of any intent to violate any provision of this Act or any rule or regulation of the Commission authorized by this Act….” See Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991). 5 Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which also applies to violations for which forfeitures are assessed under Section 503(b) 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.” 6 47 C.F.R. § 73.3526(e)(12). 7 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999); 47 C.F.R. §1.80. 8 47 U.S.C. § 503(b)(2)(E). 9 47 U.S.C. § 503(b), 47 C.F.R. §§ 0.111, 0.311, 0.314, 1.80, 73.3526(e)(12). Federal Communications Commission 3 9. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Commission's Rules within thirty days of the release date of this Notice of Apparent Liability for Forfeiture, R-S Broadcasting Company, Inc. SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. 10.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/Account Number and FRN Number referenced above. Payment by check or money order may be mailed to Federal Communications Commission, 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, and account number 27000001. For payment by credit card, an FCC Form 159 (Remittance Advice) must be submitted. When 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). Requests for full payment under an installment plan should be sent to: Chief Financial Officer -- Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington, D.C. 20554.10 Please contact the Financial Operations Group Help Desk at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions regarding payment procedures. If payment is made, R-S Broadcasting shall send electronic notification on the date said payment is made to NER- Response@fcc.gov. 11.The response, if any, must be mailed to Federal Communications Commission, Enforcement Bureau, Northeast Region, Columbia Field Office, 9200 Farm House Lane, Columbia, MD, 21046 and must include the NAL/Acct. No. referenced in the caption. 12.The Commission will not consider reducing or canceling a forfeiture in response to a claim of inability to pay unless the petitioner 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 petitioner’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. 13.IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability for Forfeiture shall be sent by Certified Mail, Return Receipt Requested, and regular mail, to R-S Broadcasting Company, Inc. at its address of record. FEDERAL COMMUNICATIONS COMMISSION Richard M. Caine Acting District Director Columbia Field Office Northeast Region Enforcement Bureau 10 See 47 C.F.R. § 1.1914.