March 31, 2006

**DA 06-759**

*In Reply Refer To*: 1800B3-JP

NAL/Acct. No.: MB200641410032

> FRN: 0004383469
>
> Released: March 31, 2006

**[CERTIFIED MAIL -- RETURN RECEIPT REQUESTED]{.underline}**

William M. Rogers

Rogers Communications, Inc.

1410 Highway 411 NE

Cartersville, GA 30121

Charles V. Shiflett, Jr.

Clarion Communications, Inc.

P.O. Box 200399

Cartersville, GA 30120

Marc B. Hershovitz, Esquire

3390 Peachtree Road, Suite 1000

Atlanta, GA 30326

In re: Rogers Communications, Inc.

> WYXC(AM), Cartersville, GA

Facility ID No. 19541

File No. BR-20041018ACA(renewal)

File No. BAL-20050328AKL(assignment)

Gentlemen:

We have before us (1) the above captioned application of Rogers
Communications, Inc. ("Rogers") for renewal of license for station
WYXC(AM), Cartersville, Georgia; (2) the above captioned application of
Rogers for assignment of WYXC(AM)'s license to Clarion Communications,
Inc. ("Clarion")[^1]; (3) Objection to Renewal Seeking Denial, Objection
to Assignment and Complaint ("Objection") filed by Marc B. Hershovitz
("Hershovitz") on July 5, 2005; and (4) Petition for Reconsideration and
Response to Objection ("Petition") filed by Rogers on August 15, 2005.
The renewal application was granted on June 13, 2005, and Rogers was
issued a Notice of Apparent Liability for Forfeiture for failure to
timely file a license renewal and for unauthorized operation.[^2] The
application for assignment of WYXC(AM)'s license was granted on June 14,
2005. These grants and the Notice of Apparent Liability for Forfeiture
were set aside on July 15, 2005.[^3] For the reasons set forth below, we
grant Hershovitz's Objection in part and admonish Rogers for its
violation of Sections 73.3526 and 73.1943 of the Commission's rules.[^4]
Additionally, we again issue a NOTICE OF APPARENT LIABILITY FOR
FORFEITURE to Rogers for its failure to timely file a license renewal
application and for unauthorized operation; we also grant Rogers'
license renewal application and the application for assignment of
WYXC(AM)'s license to Clarion Communications, Inc.

*Public file rule allegation*. In his Objection, Hershovitz alleges that
WYXC(AM) has failed to keep a public file in violation of Section
73.3526 of the Commission's rules, which, among other things, equires a
station to maintain a political file pursuant to Section 73.1943 of the
Commission's rules. Hershovitz states that Chris Brimer went to inspect
WYXC(AM)'s public file on March 30, 2005, and found no political orders,
contracts, or invoices.[^5] According to Hershovitz, such information
should have been in the file as it was known from several sources that
the station had sold airtime to candidates for public office in
2004.[^6]

In response, Rogers acknowledges that Mr. Brimer was not given the
political file when he visited the station on March 30, 2005, and
requested to see the station's public file. In a sworn declaration
attached to the Petition, Charles V. Shiflett, President of Clarion
Communications, Inc., with which Rogers has a Time Brokerage Agreement
to provide programming and other services to WYXC(AM), states that he
was at WYXC(AM) at the time of Mr. Brimer's visit on March 30, 2005. He
further states that he gave Mr. Brimer portions of the public file --
leaving out the political file and portions of the public file which
contained technical material such as contour maps -- and asked Mr.
Brimer if there was anything in particular he wanted to see, to which
Mr. Brimer responded "no." Mr. Shiflett states that, at any time during
Mr. Brimer's visit, the political file could have been provided to Mr.
Brimer within seconds. Mr. Shiflett explains that he did not provide the
political file because "\[t\]o his knowledge, the political portion of
the public file is usually of interest only during campaigns."[^7]
Rogers states that "Mr. Shiflett is correct that the political file
requirements are intended to assist candidates during campaigns." Also
attached to the Petition is a sworn declaration from William Rogers,
President, Director and sole shareholder of Rogers, in which he states
that, at various times during his five year ownership of the station, he
has physically examined WYXC (AM)'s public file and noted that the
political file was included in the public file.[^8]

Section 73.3526 of the Commission's rules requires broadcast licensees
to maintain and make available for public inspection, at the main studio
of a station, a public file of information ("public file"), including
those political records required by Section 73.1943 of the Commission's
rules. Section 73.1943 requires that every licensee maintain and permit
public inspection of a political file, which should contain a "complete
and orderly record" of all requests for broadcast time made by
candidates for public office and the disposition of those requests, and
all free time provided to candidates; and that this information be
placed in the file as soon as possible and retained for a period of two
years. While one of the purposes of the political file is to make
available to candidates information relevant to their equal opportunity
rights, the political file is part of the public file, to be made
available to the public, not just candidates, and at any time, not just
during campaign seasons.

Considering the record as a whole in this case, we believe that Rogers
should be admonished for violating Sections 73.3526 and 73.1943 of the
Commission's rules. The whole public file, including the political file,
is required to be made available to the public, upon request. Mr.
Shiflett admitted that, on March 30, 2005, he failed to give Mr. Brimer
significant portions of the public file, including the political file,
when Mr. Brimer asked to see the public file. Neither Mr. Shiflett's
asking Mr. Brimer if there was anything in particular he wanted to see
nor his willingness to provide all of the file should it have been
requested is sufficient to comply with the Commission's rules. Mr.
Brimer asked for the public file once; he should not have had to ask for
it again to see the complete file. We also caution Rogers to make the
whole public file available when it is requested and not just the parts
of the file that someone at the station may deem "of interest."

*Section 73.3539 violation*. Rogers's renewal application for the
current WYXC(AM) license term was due on December 1, 2003, four months
prior to the April 1, 2004, license expiration date.[^9] The application
was not filed until October 18, 2004, more than six months after the
station's license had expired. Rogers provides no explanation for the
untimely filing of the license renewal application.

Upon the April 1, 2004 expiration of WYXC(AM)'s license, Rogers's
operation of WYXC(AM) was unauthorized and should have ceased
immediately. Rogers did not seek Special Temporary Authorization to
continue operating the station pending action on the license renewal
application.

The guidelines contained in the Commission's *Forfeiture Policy
Statement*[^10] specify a base forfeiture amount of \$3,000 for failure
to file a required form. The guidelines also specify a base forfeiture
amount of \$10,000 for construction and/or operation without an
instrument of authorization for the service. Section 503(b)(2)(D) of the
Communications Act of 1934, as amended (the "Act"), requires the
Commission to consider "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."[^11] In this case, Rogers failed
to timely file the WYXC(AM) license renewal application and continued
station operations for more than six months before filing the
appropriate renewal application. Neither did Rogers seek Special
Temporary Authorization to continue station operations pending action on
the license renewal application. On the other hand, Rogers had
previously been licensed to operate station WYXC(AM), so this
transgression is not comparable to "pirate" wireless operations, which
typically have been subject to forfeitures of approximately
\$10,000.[^12] 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 full \$3,000 forfeiture for the failure
to timely file the renewal application but reduce the proposed
forfeiture for the unauthorized operation from \$10,000 to \$4,000, for
a total proposed forfeiture of \$7,000.[^13]

*License renewal application.* In evaluating an application for license
renewal, the Commission's decision is governed by Section 309(k) of the
Act.[^14] This section provides that if, upon consideration of the
application and pleadings, we find: (1) the station has served the
public interest, convenience, and necessity; (2) there have been no
serious violations by the licensee of the Act or the Commission'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.[^15] If, however, the licensee fails to meet this standard,
the Commission may deny the application -- after notice and opportunity
for a hearing under Section 309(e) of the Act[^16] \-- or grant the
application "on terms and conditions that are appropriate, including a
renewal for a term less than the maximum otherwise provided."[^17]

We find that none of Rogers' established violations constitutes a
"serious violation" of the Commission's rules warranting designation for
evidentiary hearing. Moreover, we find that these violations, when
considered together, do not evidence a pattern of abuse.[^18] Further,
we find that station WYXC(AM) served the public interest, convenience,
and necessity during the subject license term. We will therefore grant
Rogers's license renewal application below.

*License Assignment*. We have reviewed the application to assign the
license of station WYXC(AM) from Rogers Communications, Inc. to Clarion
Communications, Inc. We find that Rogers and Clarion are fully qualified
to sell and acquire, respectively, the license for WYXC(AM) and that the
grant of the application would further the public interest, convenience
and necessity. We will, therefore, grant the application for assignment
below.

*Conclusion/Actions.* ACCORDINGLY, IT IS ORDERED that pursuant to
Section 503(b) of the Act,[^19] and Sections 0.283 and 1.80 of the
Commission's rules,[^20] Rogers Communications, Inc. is hereby advised
of its apparent liability for a forfeiture of \$7,000 for willfully and
repeatedly violating Section 73.3539 of the Commission's rules and
Section 301 of the Act.[^21]

IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission's
rules, that within thirty (30) days of the date of this Notice, Rogers
SHALL PAY to the United States the full amount of the proposed
forfeiture of SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.

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 FCC Registration Number
("FRN") (0004383469) and the NAL/Account Number (MB200641410032)
referenced in the caption of this document. Payment by check or money
order may be mailed to Federal Communications Commission, P.O.
Box 358340, Pittsburgh, PA 15251-8340.  Payment by overnight mail may be
sent to Mellon Bank /LB 358340, 500 Ross Street, Room 1540670,
Pittsburgh, PA 15251.   Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and account
number 911-6106.

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 FRN (0004383469) and NAL/Account Number
(MB200641410032) referenced in the caption of this document.

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.

Requests for payment of the full amount of the proposed forfeiture in
this Notice of Apparent Liability under an installment plan should be
sent to: Chief, Revenue and Receivables Operations Group, 445 12^th^
Street, S.W., Room 1-A625, Washington, D.C. 20554.[^22]

IT IS FURTHER ORDERED, that Marc B. Hershovitz's Opposition to Renewal
Seeking Denial, Objection to Assignment and Complaint IS GRANTED to the
extent indicated herein and DENIED in all other respects, and Rogers
Communications, Inc. IS ADMONISHED for its apparent violations of
Sections 73.3526 and 73.1943 of the Commission's Rules. Finally, IT IS
ORDERED, that the application (File No. BR-20041018ACA) of Rogers
Communications, Inc. for renewal of license for station WYXC(AM),
Cartersville, Georgia, IS GRANTED and the application (File No.
BAL-20050328AKL) to assign WYXC(AM)'s license from Rogers
Communications, Inc. to Clarion Communications, Inc. ARE GRANTED.

IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by first class mail and certified mail
return receipt requested to William M. Rogers, Rogers Communications,
Inc., 1410 Highway 411 NE, Cartersville, Georgia 30121, Charles V.
Shiflett, Jr., Clarion Communications, Inc., P.O. Box 200399,
Cartersville, Georgia 30120, and Marc B. Hershovitz, Esquire, 3390
Peachtree Road, Suite 1000, Atlanta, Georgia 30326.

Sincerely,

Donna C. Gregg

Chief, Media Bureau

cc: Alan C. Campbell, Esquire

Jeffrey L. Timmons, Esquire

[^1]: Rogers' renewal application was filed on October 18, 2004 and the
    application for assignment was filed on March 9, 2005.

[^2]: *See* *Letter to William M. Rogers*, NAL/Acct No. MB20051810068
    (MB June 13, 2005).

[^3]: *See* *Letter to William M. Rogers and Charles V. Shiflett, Jr*.,
    Reference 1800B3-MFW (MB July 15, 2005).

[^4]: ^?^ 47 C.F.R. §§ 73.3526, 73.1943.

[^5]: *See* Objection at 2 and Exhibit A (Affidavit of Chris Brimer).

[^6]: *See* Objection Exhibit B containing Campaign Finance Disclosure
    Reports filed with the State of Georgia by two candidates running
    for public office in Georgia in 2004 indicating purchases by the
    campaigns of broadcast time on WYXC(AM) and copies of orders to
    purchase time on the station from LUC Media, media buyer for two
    other such candidates. []{.mark}

[^7]: *See* Petition Attachment 3. A sworn declaration from Thomas
    Young, Secretary of Clarion, is also attached to the Petition. In
    his declaration, Mr. Young states that he was present at WYXC(AM)
    when Mr. Brimer visited on March 30, 2005, that he observed Mr.
    Shifflett give Mr. Brimer portions of the public file, heard Mr.
    Shiflett tell Mr. Brimer that he could get him the political file if
    he wanted to see it, and heard Mr. Brimer decline this offer. We
    note that, in his declaration, Mr. Shiflett does not indicate
    mentioning the political file to Mr. Brimer.

[^8]: *See* Petition Attachment 5. Rogers states that it should be noted
    that WYXC(AM) was inspected by the Commission's Atlanta Office on
    May 1, 2001, and that a Notice of Violation issued in connection
    with that inspection did not mention a violation of the public file
    rule. Rogers argues that this fact is evidence that the political
    file was in the public file on May 1, 2001. The Objection, however,
    concerns the different issue of whether the complete public
    inspection file was provided to Mr. Brimer when he requested to see
    it on March 30, 2005.

[^9]: ^?^ *See* 47 C.F.R. §§ 73.1020, 73.3539(a).

[^10]: ^?^ *Commission's Forfeiture Policy Statement and Amendment of
    Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines*,
    12 FCC Rcd 17087, 17115 (1997), *recon. denied,* 15 FCC Rcd 303
    (1999) ("*Forfeiture Policy Statement*"); *see also* 47 C.F.R. §
    1.80(b).

[^11]: ^?^ 47 U.S.C. § 503(b)(2)(D).

[^12]: ^?^ *Joe L. Ford d/b/a Ford Communications*, 15 FCC Rcd 23721,
    23722 (EB 2000) (citing *Jean R. Jonassaint*, 15 FCC Rcd 10422 (EB
    2000)).

[^13]: ^?^ *See, e.g.*, *Discussion Radio Inc.*, 19 FCC Rcd 7433, 7438
    (2004) and *Gospel Rogers, Inc.*, 19 FCC Rcd 15600 (MB 2004).
    Although in *Gospel Rogers,* the Bureau imposed an NAL of \$3,000
    for unauthorized operation, in that case the applicant sought STA to
    continue operating. The \$4,000 NAL imposed here 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*, 20 FCC Rcd 1366 (EB 2005) and *In the Matter of Joselyn
    Gordon*, 19 FCC Rcd 23557 (EB 2004).

[^14]: ^?^ 47 U.S.C. § 309(k).

[^15]: ^?^ 47 U.S.C. § 309(k)(1).

[^16]: ^?^ 47 U.S.C. § 309(e).

[^17]: ^?^ 47 U.S.C. § 309(k)(2).

[^18]: ^?^ For example, we do not find here that the licensee's station
    operation "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 Station*, 32 FCC2d 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 Station*, 32 FCC2d at 200. *See also Center for
    Study and Application of Black Economic Development*, 6 FCC Rcd 4622
    (1991) and *Calvary Educational Broadcasting Network, Inc*., 7 FCC
    Rcd 4037 (1992).

[^19]: 47 U.S.C. § 503(b).

[^20]: ^?^ 47 C.F.R. §§ 0.283 and 1.80.

[^21]: ^?^ 47 C.F.R. § 73.3539; 47 U.S.C. § 301.

[^22]: *See* 47 C.F.R. § 1.1914.