WKCR-FM, the radio station of Columbia University, has been fined $10,000 by the FCC over a lapse in its record-keeping from 1998 to 2005. The fine is the standard penalty for failing to maintain a public inspection file. The Commission claimed WKCR was missing a record of shows of community interest–the issues/programs list.
“The violations were extensive, occurring over an eight-year period and involving twenty-nine issues/programs lists,” Peter Doyle Chief, Audio Division Media Bureau said. “Although we are sympathetic to the challenges the Station has faced as a result of the destruction of the World Trade Center, we note that Columbia failed to prepare twelve issues/programs lists over a four-year period before its transmission facilities were destroyed.”
WKCR is the third college station to be fined this month for public inspection file violations. The University of Maryland Eastern Shore and Toccoa Falls College in Georgia have both been fined $10,000.
The Commission also called Columbia’s lapses serious violations that “constitute a pattern of abuse.” According to the agency’s four-page order, the university disclosed the missing documents when it last applied for a license renewal, in 2006. In that application, Columbia said it faced difficulties after the 2001 attacks on the World Trade Center, where its transmitter was located, but the FCC noted that the infractions had begun years before the attacks, in 1998.
In a statement on 5/16, Columbia U said it has since complied with the rules, reported The NY Times: “For several years prior to 2006, there was an administrative oversight at this historic student-run radio station that resulted in the shortcoming in program record-keeping. Since 2006, appropriate measures have been in place to ensure necessary record-keeping, and WKCR has been in compliance with commission program filing requirements.”
The six-year delay in levying the fine was apparently due, at least in part, to a separate investigation by the agency’s enforcement bureau, which was recently dropped.
According to its order, the Commission will renew WKCR’s license, which is held by the trustees of Columbia University, once the fine is paid. WKCR-FM currently holds an eight-year license that expires in 2014.
The FCC release on the fine:
MEMORANDUM OPINION AND ORDER
AND NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: May 14, 2012 Released: May 15, 2012
By the Chief, Audio Division, Media Bureau:
I. INTRODUCTION
1. The Media Bureau (“Bureau”) has before it the application of Trustees of Columbia University in New York (“Columbia”) for renewal of its license for WKCR-FM, New York, New York (“Station”). In this Memorandum Opinion and Order and Notice of Apparent Liability for Forfeiture (“NAL”), we find that Columbia apparently willfully and repeatedly violated Section 73.3527 of the Rules by failing to retain all required documentation in the Station’s public inspection file. Based upon our review of the record before us, we conclude that Columbia is apparently liable for a monetary forfeiture in the amount of ten thousand dollars ($10,000).
II. BACKGROUND
2. Section 73.3527 of the Rules requires a noncommercial broadcast licensee to maintain a public inspection file containing specific types of information related to station operations. The purpose of this requirement is to provide the public with timely information about the station at regular intervals throughout the license period. Among the materials required for inclusion in the file are the station’s quarterly issues/programs lists, which must be retained until final Commission action on the station’s next license renewal application.
3. Section III, Item 3 of the license renewal application form, FCC Form 303-S, requests that the licensee certify that the documentation required by Section 73.3527 has been placed in the station’s public inspection file at the appropriate times. Columbia answered “No” to that certification and attached an Exhibit explaining that issues/programs lists for all periods prior to the fourth quarter of 2005 were missing from the Station’s public file. Columbia states that it has implemented procedures to ensure that issue/programs lists are timely prepared. Columbia also states that because of the destruction of its transmission facilities, previously located at the World Trade Center, the Station has faced operating difficulties and been transmitting from various temporary locations and with reduced coverage area.
III. DISCUSSION
4. Proposed Forfeiture. As Columbia has acknowledged, at the time of the filing of the Station’s license renewal application, and during periods within the license term, the Station’s public inspection file did not contain many of the items required to be retained in the file by Section 73.3527 of the Rules. In this regard, where lapses occur in maintaining the public file, 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.
5. 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. 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. 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, and the Commission has so interpreted the term in the Section 503(b) context. 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.”
6. The Commission’s Forfeiture Policy Statement and Section 1.80(b)(4) of the Rules establish a base forfeiture amount of $10,000 for violation of Section 73.3527. In determining the appropriate forfeiture amount, we may adjust the base 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.”
7. In this case, although Columbia admitted to violating Section 73.3527, it did so only in the context of the question contained in its license renewal application that compelled such disclosure. Moreover, the violations were extensive, occurring over an eight-year period and involving twenty-nine issues/programs lists. Although we are sympathetic to the challenges the Station has faced as a result of the destruction of the World Trade Center, we note that Columbia failed to prepare twelve issues/programs lists over a four-year period before its transmission facilities were destroyed. These violations would justify a proposed forfeiture of $10,000. Additionally, although Columbia has a history of compliance with the Rules, a downward adjustment is not appropriate here considering the extensive violations that occurred. Considering the record as a whole, we believe that a $10,000 forfeiture is appropriate for the Section 73.3527 violations in this case.
8. License Renewal Application. In evaluating an application for license renewal, the Commission’s decision is governed by Section 309(k) of the Act. 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. 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.”
9. We find that Columbia’s apparent violations of Section 73.3527 of the Rules are “serious violations” and constitute a pattern of abuse. Ordinarily, while Columbia’s violations would not warrant designating the renewal application for hearing, we would nonetheless grant the renewal application for a limited period rather than a full eight-year term. However, in this situation, such a measure would not serve any value because Columbia must, under our Rules, file a renewal application on February 1, 2014. Further, we find that the Station served the public interest, convenience, and necessity during the subject license term. We will therefore grant the license renewal 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
10. 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 Trustees of Columbia University in New York, is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of ten thousand dollars ($10,000) for its apparent willful and repeated violation of Section 73.3527 of the Commission’s Rules.
11. 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, Trustees of Columbia University in New York SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture.
12. 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). Columbia will also send electronic notification on the date said payment is made to [email protected] and [email protected].
13. 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.
14. 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.
15. 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.
17. IT IS FURTHER ORDERED that copies of this NAL shall be sent, by First Class and Certified Mail, Return Receipt Requested, to Trustees of Columbia University in New York, 2920 Broadway, Mail Code 2612, New York, NY 10027, and to its counsel, Joseph A. Godles, Esq., Goldberg Godles Wiener & Wright, 1229 19th Street N.W., Washington, DC 20036-2413.
FEDERAL COMMUNICATIONS COMMISSION
Peter H. Doyle
Chief, Audio Division
Media Bureau
