DA 92-794 Federal Communications Commission Record 7 FCC Red No. 13

The FCC's Seattle Office issued Crista a Notice of Ap­ Before the parent Liability on October 3, 1991, for willfully violating Federal Communications Commission Section 73.3526(d) of the FCC's rules. 47 C.F.R. Section Washington, D.C. 20554 73.3526(d). Section 73.3526(d) requires broadcast stations to have their public inspection files "available for public inspection at any time during regular business hours." LETTER Crista replied to the Notice of Apparent Liability in an June 11, 1992 undated letter. Attached to the letter was a statement from Anthony K. Bollen, general manager of stations KCIS(AM) and KCMS(FM), dated October 30, 1991; and a memoran­ Released: June 23, 1992 dum from the law offices of Cohen and Berfield. On November 29, 1991, the FCC's Seattle Office issued Crista a Notice of Forfeiture for a $7 ,500 monetary forfeiture CERTIFIED MAIL RETURN RECEIPT REQUESTED penalty. The FCC's authority to impose monetary for­ feiture penalties for violations of its rules is contained in Morton L. Berfield, Esq. Re: Notice of Forfeiture Section 503(b) of the Communications Act of 1934. 47 Cohen and Berfield issued to Crista Ministries Inc. U .S.C. Section 503(b ). Attorneys on November 29, 1991. Crista acknowledges that it denied requests to view its public inspection file on September 19 and 23, 1991, but Board of Trade Building 3153501-92001 it states several reasons why the monetary forfeiture pen­ 1129 20th Street, N.W. alty should not be imposed. Crista explains that on Sep­ Washington, D.C. 20036 tember 19, it "may have misunderstood whether the visitor was interested in the files or in talking with someone Dear Mr. Berfield: knowledgeable as to the coverage area of the stations ...." Nevertheless, based on the information in the complaint This is in response to your letter to the Federal Commu­ and Crista's statements, Crista denied access to its public nications Commission's (FCC) Seattle, Washington Office inspection file on September 19, and requested the visitor dated December 16, 1991. Your letter requested that a to make an appointment to view the file. The FCC's $7.500 monetary forfeiture penalty assessed by the FCC's public inspection file rule provides that this file must be Seattle Office against Crista Ministries Inc. (Crista), Seattle, available for inspection during a station's normal business Washington "be referred to the appropriate Commission hours. This rule has been interpreted to mean that the office in Washington, D.C. ... for resolution." public inspection file should "be available for immediate inspection by members of the public." Thomas P. We are treating your request as a Petition for Reconsi­ Brunnock, 50 RR2d 1313, 1314a (1982). The Commission, deration under Section 1.106 of the FCC's rules. 47 C.F.R. moreover, has stated that "Members of the public cannot Section 1.106. As ~xplained below, the monetary forfeiture be required to inspect that file only through prior appoint­ penalty is reduced to $6,000. and this penalty is affirmed. ments or at times most convenient to the licensee ...." Our records show that on September 19, 1991, the License Renewal Applications of Certain Commercial Televi­ FCCs Seattle Office received a complaint from a private sions Stations Serving Philadelphia, 67 RR2d 1567, 1573 citizen that on that date at 11 :45 a.m., he visited co-located (1990). broadcast stations KCIS(AM) and KCMS(FM) (licensed to Concerning the FCC inspector's request to view the Crista), Edmonds, Washington, and requested to view the public inspection file on September 23, Crista states "Ms. stations' public inspection file. The complaint states that Neely had a key to the office (where the file was located! the stations' operations manager denied the request be­ but was uncomfortable letting a stranger in the Operations cause the stations were too busy and that if a person Manager's Office without (his] permission." It would ap­ wished to see the file, he should telephone to make an pear that the file could have been removed by Ms. Neely appointment. from this office to obviate this concern. Crista further On September 23, 1991, at approximately 3:05 p.m., an states that "Ms. Neely explained ... that the only manager FCC inspector visited the stations and asked a receptionist available was on the air." If Crista believes that it was if he could view the public inspection file. The reception­ necessary for a manager to make the decision to allow its ist said no because the station manager was at a conven­ public inspection file to be viewed, it would appear that tion that week and, therefore, the request would have to Ms. Neely could have done this since Ms. Neely had be submitted at another time. The FCC inspector then identified herself to the FCC inspector as the business requested the file from the stations' business manager, and manager. Crista also states that "Ms. Neely offered to call" she denied the request because the file was locked in the the FCC inspector "by the end of the day or the next station managers office and she did not believe it would be morning." The FCC inspector agrees that Ms. Neely of­ proper to allow a stranger in the office. fered to phone him, but she did not indicate when she The business manager then asked the FCC inspector would call. Regardless of the exact details of the above, the what he wanted to see in the file, who he was, where he FCC inspector's request to view the public inspection file lived, what his phone number was, and whether he had was denied and there was no attempt to make it imme­ previously visited the station? The business manager also diately available to him. declined a second time to allow the public inspection file Crista explains that the monetary forfeiture penalty to be viewed, and suggested that the inspector phone on should not be imposed since it took prompt remedial September 26 to make an appointment to see the file. As action to correct the violation. Remedial action to correct the inspector was leaving the station. the business manager a violation, although commendable, does not nullify a offered to telephone the inspector, but did not state when.

3972 7 FCC Red No. 13 Federal Communications Commission Record DA 92-794 forfeiture penalty. E.g., Station KGVL, Inc., 42 FCC 2d a misunderstanding of the FCC's rules does not excuse a 258, 259 (1973); Executive Broadcasting Corp., 3 FCC 2d violation. See, e.g., Triad Broadcasting Company, Inc., 96 699, 700 (1966). FCC 2d 1235, 1242 (1984). It is also argued that Crista should not be subject to a Regarding a third case cited by Crista, License Renewal penalty since it is a non-profit organization. The FCC does Applications of Certain Commercial Television Stations Serv­ not distinguish between non-profit and for-profit organiza­ ing Philadelphia, 67 RR2d 1567 (1990), Crista states "There tions in imposing monetary forfeiture penalties. a licensee had a policy of suggesting appointments for Crista objects to the statement in the FCC's Notice of persons wishing to inspect the public files. The Commis­ Apparent Liability that the violation was "willful" since sion ruled that while the public can not be required to "There was no intent to withhold access to the Public make prior appointments, the station's policy did not war­ Files, and in both instances CRISTA employees attempted rant the imposition of any sanction." This is not exactly to be helpful. ..." Section 312(f)(l) of the Communica­ what the Commission stated in this case. The Commission tions Act of 1934 defines willful as "the conscious and explained that although the licensee had a policy of re­ deliberate commission or omission of such act, irrespective questing a prior appointment, which was improper, a pen­ of any intent to violate any provision of this Act or any alty would not be imposed because it appeared that the rule ... of the Commission." 47 U.S.C. Section 312(f)(l). licensee did not refuse inspection if a person lacked an Willfulness exists if there is a voluntary act or omission appointment and there was no evidence that anyone had in that a person knew that he was doing the act in been denied access. 66 RR2d at 1573. This decision, there­ question. Furthermore, to establish a willful violation, it is fore, does not support Crista's position. not necessary to show that a person knew he was acting Finally, Crista claims that a monetary forfeiture penalty wrongfully. In addition, one of the main policy factors should be considerably reduced or eliminated by applying guiding the FCC in imposing forfeitures has been whether the downward adjustment criteria contained in the FCC's a willful act demonstrated a lack of concern, indifference Policy Statement, Standards for Assessing Forfeitures, 69 or laxity regarding compliance with the FCC's rules. Mid­ RR2d 823 (1991), modified in part on recon., FCC 92-212, west Radio - Television, Inc., 45 FCC 1137, 1141-42 (1963). adopted May 14, 1992. The Policy Statement provides for a In Crista's situation, there was a willful violation since monetary forfeiture penalty of $7 ,500 when there is a Crista consciously and voluntarily denied access to its pub­ violation of the FCC's public file rule, and we believe that lic inspection file, and it is not relevant whether Crista ·this penalty as a base amount for Crista's violation based realized that its denial violated an FCC rule. on guidance in the Policy Statement is appropriate. Crista explains that in other FCC cases, the FCC has not Crista argues that the penalty should be reduced because imposed monetary forfeiture penalties "where the file were there was only a minor violation. The seriousness of this not readily available but station employees made attempts type of violation was taken into consideration when the to make the files available at a subsequent time." There Commission established a "base" forfeiture of $7 ,500 for are FCC decisions where the FCC declined to impose a this type of violation. 69 RR2d at 824. Regarding whether forfeiture, but in these cases, it appears that there were this was a minor violation relative to other possible viola­ extenuating circumstances not present in Crista's situation tions of the same rule, it is not a minor violation when such as very short delays in providing public inspection two violations occur during a period of several days. This files or a station moving to a new location. is a repeated or continuing violation for which the FCC Crista cited Thomas P. Brunnock, 50 RR2d 1313 (1982), would be justified in imposing a $7 ,500 forfeiture for each in support of its position. In this case there was a two violation. The Policy Statement made clear that the $7 ,500 hour delay in making a file available in response to a forfeiture for Crista's violation was "for a single violation single request, and the FCC did not impose a penalty. In or single day of a continuing violation." 69 RR2d at 825 Crista's situation, there were two requests and denials four n.l. The Policy Statement also authorizes an upward adjust­ days apart. Furthermore, there was no clear indication that ment of the base amount of monetary forfeiture penalties the file would be promptly provided in response to these for "repeated or continuous violations." 69 RR2d at 827. requests. Since access to the file was denied four days after However, taking into account, in general, the downward the first request, this reflects that the file was not promptly adjustment criteria in the Policy Statement, especially lack being made available to the public. As previously ex­ of evidence regarding past noncompliance with the FCC's plained, the FCC's rule was interpreted by the Thomas P. rules, the penalty is reduced from $7,500 to $6,000. Brunnock decision to require that the file be provided Please request Crista to submit the $6,000 monetary immediately. If the station had a public inspection file, it forfeiture payment within 30 days of the receipt of this appears that its employees believed that they were too busy letter. Payment may be by check or money order payable in their normal activities to attempt to provide it. This is to the Federal Communications Commission. The number exactly the type of situation where a penalty is warranted. 3153501-92001 should be placed on the check and it Also cited by Crista is the Jose Pedro Bio decision. 50 should be sent to: RR2d 1413 ( 1982). Crista states that in this case there was more than a four month delay in making a file available, and no sanction was imposed. The Jose Pedro Bio case was decided by the Complaints and Compliance Division of the Mass Media Bureau rather than the Commission, and, therefore, has limited precedential value. The Division declined to impose a penalty based on the stated rationale that the file was eventually provided and the delay was based on a good faith misunderstanding of the FCC's rules. However, numerous Commission decisions have held that

3973 DA 92-794 Federal Communications Commission Record 7 FCC Red No. 13

Federal Communications Commission Post Office Box 73482 Chicago, Illinois 60673-7482

Forfeiture penalties not paid within 30 days may be recovered by the U.S. Attorney in a civil suit. 47 U.S.C. Section 504(a).

Sincerely,

Richard M. Smith Chief, Field Operations Bureau

cc: Crista Ministries Inc. Licensee of KCIS and KCMS 19303 Fremont Avenue N Seattle, Washington 98133

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