**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In re Application of             | *  | Facility I.D. No**.** 62148  |
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| **St. Luke's Foundation, Inc.**  | ** | NAL/Acct. No. MB200741410438 |
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| For Renewal of License for       | *  | FRN: 0014345094              |
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| Station WSLX(FM)                 | ** | File No. BRED-20061020ADB    |
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| New Canaan, Connecticut          | *  |                              |
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**MEMORANDUM OPINION AND ORDER**

**AND**

**NOTICE OF APPARENT LIABILITY FOR FORFEITURE**

**Adopted: November 30, 2007 Released: December 3, 2007**

By the Chief, Audio Division, Media Bureau:

**I. INTRODUCTION**

1\. The Commission has before it the captioned application of St. Luke's
Foundation, Inc. (the "Licensee"), for renewal of its license for
noncommercial educational Station WSLX(FM), New Canaan, Connecticut (the
"Station"). In this *Memorandum Opinion and Order and Notice of Apparent
Liability for Forfeiture ("NAL")* issued pursuant to Sections 309(k) and
503(b) of the Communications Act of 1934, as amended (the "Act"), and
Section 1.80 of the Commission's Rules (the "Rules"),[^1] by the Chief,
Audio Division, Media Bureau, by authority delegated under Section 0.283
of the Rules,[^2] we find that the Licensee apparently willfully
violated Section 73.3539 of the Rules,[^3] by failing to file a timely
license renewal application for the Station, apparently and willfully
and repeatedly violated Section 301 of the Act,[^4] by engaging in the
unauthorized operation of the Station after its authorization had
expired. Based upon our review of the facts and circumstances before us,
we conclude that the Licensee is apparently liable for a monetary
forfeiture in the amount of seven thousand dollars (\$7,000), and we
grant the captioned WSLX(FM) license renewal application.

**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."[^5] An application for
renewal of WSLX(FM)'s license should have been filed by December 1,
2005. No such application was filed, and the Station's license expired
on April 1, 2006. In fact, the Licensee did not file a license renewal
request for the Station until October 20, 2006. On that same date, the
Licensee filed a request for special temporary authorization ("STA") to
continue operations pending consideration of the untimely WSLX(FM)
renewal application.[^6] The staff granted the STA Reqeust on May 1,
2007, and it expired on November 1, 2007.[^7] The Licensee filed a
timely request for extension of the STA on October 30, 2007, which
remains pending.[^8] In the STA, the Licensee explains that the faculty
members responsible for station operations were informed by alumni
volunteers who had taken on the responsibility for filing the license
renewal application had been filed. It had not, and it was not until an
attorney experienced in FCC matters was asked to look into the unrelated
matter did the Licensee realize that the license renewal application had
not been filed.

**III. DISCUSSION**

3\. *Proposed Forfeiture.* In this case, the Licensee has failed to file
a timely license renewal application for the Station, as required by
Section 73.3539 of the Rules. Moreover, it continued operating the
Station for more than six months after the license had expired on April
1, 2006, 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, the Licensee did not do so.

4\. This *NAL* is issued pursuant to Section 503(b)(1)(B) of the Act.
Under that provision, any person who is determined by the Commission to
have failed willfully or repeatedly 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 station construction
and/or operation without an instrument of authorization for the
service.[^16] 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."[^17]

6\. In this case, the Licensee failed to file a timely renewal
application and continued operating the Station for more than six months
before filing the appropriate application and seeking STA to so operate.
Nevertheless, because it had previously been licensed to operate the
Station, the latter transgressions are 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 timely file the renewal application
for the Station, 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.

7\. *License Renewal Application.* In evaluating an application for
license renewal, the Commission's decision is governed by Section 309(k)
of the Act.[^19] 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.[^20] 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."[^21]

8\. We find that the Licensee's violations 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, evidence a
pattern of abuse.[^22] Further, we find that Station WSLX(FM) served the
public interest, convenience, and necessity during its subject license
term. We will, therefore, grant the license renewal application below.

**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 St. Luke's Foundation, Inc. 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 apparent willful and repeated violation of
Section 301 of the Communications Act of 1934, as amended.

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,*
St. Luke's Foundation, Inc. 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 358340,
Pittsburgh, Pennsylvania 15251-8340. Payment by overnight mail may be
sent to Mellon Bank/LB 358340, 500 Ross Street, Room 1540670,
Pittsburgh, Pennsylvania 15251. Payment by wire transfer may be made to
ABA Number 043000261, receiving bank Mellon Bank, and account number
911-6106.

12\. The response, if any, must be mailed to Office of the Secretary,
Federal Communications Commission, 445 12^th^ Street, S.W., Washington
D.C. 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, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554.[^23]

15\. IT IS FURTHER ORDERED that, pursuant to Section 309(k) of the
Communications Act of 1934, as amended, the license renewal application
of St. Luke's Foundation, Inc. for Station WSLX(FM), New Canaan,
Connecticut (File No. BRED-20061020ADB) IS GRANTED.

16\. IT IS FURTHER ORDERED, that copies of this *NAL* shall be sent, by
First Class and Certified Mail-Return Receipt Requested, to Mr. Jeff
Kress, St. Luke's Foundation, Inc., 377 North Wilton Road, New Canaan,
Connecticut 06840.

FEDERAL COMMUNICATIONS COMMISSION

Peter H. Doyle

Chief, Audio Division

Media Bureau

[^1]: 47 U.S.C. §§ 309(k), 503(b); 47 C.F.R. § 1.80.

[^2]: *See* 47 C.F.R. § 0.283.

[^3]: *See* 47 C.F.R. § 73.3539.

[^4]: *See* 47 U.S.C. § 301.

[^5]: 47 C.F.R. § 73.3539(a).

[^6]: *See* File No. BLSTA-20061020ACX (the "STA Request").

[^7]: *Letter St. Luke's Foundation*, Ref. 1800B3 (Chief, Audio
    Division, Media Bureau, May 1, 2007).

[^8]: *See* File No. BELSTA-20071030ABF.

[^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, 97^th^ Cong. 2d Sess. 51 (1982).

[^13]: *See Southern California Broadcasting Co.*, Memorandum Opinion
    and Order, 6 FCC Rcd 4387, 4388 (1991).

[^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.

[^17]: 47 U.S.C. § 503(b)(2)(D); *see also Forfeiture Policy Statement,*
    12 FCC Rcd at 17100**-**01; 47 C.F.R. § 1.80(b)(4); 47 C.F.R. §
    1.80(b)(4), note to paragraph (b)(4), Section II.

[^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). Although in *Gospel Media,* the
    Bureau imposed a proposed forfeiture of \$3,000 for unauthorized
    operation, the unauthorized operation lasted only two weeks. The
    \$4,000 forfeiture proposed here for unauthorized operation is
    analogous to use of an unauthorized frequency by a land mobile
    station holding a license for a different frequency. *See, e.g., In
    the Matter of Dave Mitchell*, Forfeiture Order, 20 FCC Rcd 1366 (EB
    2005); *In the Matter of Joselyn Gordon*, Forfeiture Order, 19 FCC
    Rcd 23557 (EB 2004).

[^19]: 47 U.S.C. § 309(k).

[^20]: 47 U.S.C. § 309(k)(1). The renewal standard was amended to read
    as described by Section 204(a) of the Telecommunications Act of
    1996, Pub. L. No. 104-104, 110 Stat. 56 (1996). S*ee Implementation
    of Sections 204(a) and 204(c) of the Telecommunications Act of 1996
    (Broadcast License Renewal Procedures)*, Order, 11 FCC Rcd 6363
    (1996).

[^21]: 47 U.S.C. §§ 309(k)(2), 309(k)(3).

[^22]: For example, we do not find here that the Licensee\'s operation
    of the Station \"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.\" *Heart of the Black Hills Stations*, 32 FCC
    2d 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).

[^23]: *See* 47 C.F.R. § 1.1914.