**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | Facility ID No. 58542        |
|                                  | *) |                              |
| **Saga Communications of         | ** | NAL/Acct. No. MB20051810056  |
| Illinois, LLC**                  |    |                              |
|                                  | *  | FRN: 0009269655              |
| Licensee of Station WLRW(FM)     | *) |                              |
|                                  | ** | File No. BRH-20040802BHX     |
| Champaign, Illinois              |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
|                                  |    |                              |
|                                  | *  |                              |
|                                  | *) |                              |
|                                  | ** |                              |
+----------------------------------+----+------------------------------+

**FORFEITURE ORDER**

**Adopted: December 17, 2008 Released: December 18, 2008**

By the Chief, Audio Division, Media Bureau:

# INTRODUCTION

1.  In this Forfeiture Order ("Order"), we issue a monetary forfeiture
    in the amount of three thousand dollars (\$3,000), to Saga
    Communications of Illinois, LLC ("Saga"), licensee of Station
    WLRW(FM), Champaign, Illinois ("Station"), for its willful and
    repeated violation of Section 73.3526 of the Commission's Rules
    ("Rules")[^1] by failing to properly maintain a public file for the
    Station.

# BACKGROUND

2.  On August 2, 2004, Saga filed the above-referenced application to
    renew the license of the Station (the "Application"). 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 73.3526 of the Rules has been placed in the station's
    public inspection file at the appropriate times. Saga indicated "No"
    to that certification, explaining in an Exhibit that the Station's
    public file was missing the following quarterly issues-programs
    lists: the fourth quarter of 1998; the first, second, and third
    quarters of 1999; and the fourth quarter of 2000.[^2] Subsequently,
    Saga reconstructed the missing reports, based on available, but
    imprecise information and placed these reconstructions into the
    Station's public file.

3.  On June 23, 2005, the Bureau issued a Notice of Apparent Liability
    for Forfeiture ("NAL") in the amount of three thousand dollars
    (\$3,000) to Saga for its violations.[^3] On July 25, 2005, in
    response to the NAL, Saga filed a request for cancellation of the
    proposed forfeiture ("Request"). In support of its Request, Saga
    argued that (1) the violations were not willful or repeated; (2) it
    is contrary to the public interest to assess a forfeiture for
    voluntary, self-reported violations; and (3) Commission precedent in
    similar circumstances is to admonish the licensee.

# DISCUSSION

4.  The forfeiture amount proposed in this case was assessed in
    accordance with Section 503(b) of the Act,[^4] Section 1.80 of the
    Rules,[^5] and the Commission's *Forfeiture Policy Statement*.[^6]
    In assessing forfeitures, Section 503(b)(2)(E) of the Act requires
    that we take into account 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]

5.  Saga does not dispute that it failed to maintain a complete public
    file for the Station, but raises several arguments as to why the
    forfeiture should be cancelled. First, Saga contends that the
    violations were not willful. In support, Saga cites the Commission's
    decision in *Vernon Broadcasting*,[^8] where the Commission
    rescinded a forfeiture against a licensee based upon a finding that
    the licensee\'s apparent violation of the Rules was not committed
    willfully. Here, Saga asserts that its violations were not willful,
    because it was unaware that the Station's public file was
    incomplete. In addition, Saga notes that once it discovered that the
    issues-programs lists were missing it took remedial action.

6.  Saga's reliance on *Vernon Broadcasting* is misplaced. There, the
    Commission rescinded a forfeiture imposed against a licensee who
    allegedly failed to enclose its antenna tower with a secure fence,
    in apparent violation of Section 73.49(a)(8) of the Rules.[^9] The
    Commission acknowledged that the existing fence had been vandalized
    on prior occasions and that, because of such vandalism, the licensee
    regularly inspected the fence and made necessary repairs. The
    evidence before the Commission further indicated that the fence had
    been vandalized just after the licensee\'s most recent inspection,
    but prior to an official Commission inspection, during which damage
    to the fence was revealed. On the basis of the foregoing, the
    Commission ruled that there was no indication that the licensee was
    either aware of the most recent damage to the fence or that it had
    failed to monitor the condition of its transmitter site. It did,
    however, affirm a liability for an unintentional public file
    violation, rejecting the licensee\'s argument that its public file
    violations were the result of its \"misinterpretation\" of the
    Rules.

7.  While the fence in *Vernon Broadcasting* was, by its very nature and
    location, subject to influences outside the immediate knowledge and
    control of the licensee, Saga's public file was, at all relevant
    times, under its exclusive domain. Any public file violations are
    attributable directly and solely to Saga. This distinction is
    underscored by the Commission\'s holding in *Vernon Broadcasting*.
    Thus, Saga\'s failure to properly maintain the Station\'s public
    file constituted a \"willful\" violation of Section 73.3526 of the
    Rules, irrespective of its lack of intent. 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.[^10] Thus, violations resulting from inadvertent error or
    failure to become familiar with the FCC\'s requirements are willful
    violations.[^11] A mistaken belief or ignorance of the law is not a
    mitigating factor and does not warrant a downward adjustment of an
    assessed forfeiture.[^12] Moreover, while we recognize Saga\'s
    efforts, corrective action taken to come into compliance with the
    Rules is expected, and does not nullify or mitigate any prior
    violations.[^13]

8.  Next, Saga argues that its violations of Section 73.3526 of the
    Rules were not repeated. In particular, Saga argues, without
    support, that its violation occurred "on the day it learned the
    lists were not in the file."[^14] However, Commission precedent
    clearly holds that "repeated\" means that the act was committed or
    omitted more than once, or lasts more than one day. Specifically,
    Section 312(f)(1)[^15] of the Act defines "repeated" as "the
    commission or omission of \[any\] act more than once or, if such
    commission or omission is continuous, for more than one day." [^16]
    In this case, Saga's violations of Section 73.3526 of the Rules
    lasted several years. Accordingly, we find that the violations were
    repeated.

9.  Additionally, Saga argues that the Commission should rescind the
    proposed forfeiture given its voluntary disclosure of its
    violations, and that forfeiture in this instance would discourage
    companies from voluntarily disclosing Rules violations.
    Specifically, Saga asserts that to sanction such self-reported
    violations "may encourage less scrupulous broadcasters not to report
    missing public file documents and hope they get away with it."[^17]
    Moreover, it contends that "honest mistakes should be punished by no
    more than a public admonition; not a forfeiture."[^18] While we do
    not challenge Saga's claim that the violations were inadvertent, we
    do disagree with the assertion that its disclosure of the public
    file violations was voluntary. Although Saga admitted to violating
    Section 73.3526, it did so only in the context of the question
    contained in its license renewal application that compelled such
    disclosure. Moreover, our decision is consistent with our Rules and
    our *Forfeiture Policy Statement* and encourages companies to
    voluntarily disclose violations and promptly correct
    violations.[^19] Indeed, the Bureau previously reduced Saga\'s
    forfeiture amount by \$1,000 in light of its voluntary
    disclosure.[^20]

10. Lastly, we turn to Saga's arguments that the imposition of a
    forfeiture for the violations is inconsistent with Commission
    precedent. In particular, Saga cites an Enforcement Bureau decision
    admonishing a licensee where the Station's public file was missing
    the required copy of "The Public and Broadcasting" procedural
    manual.[^21] Additionally, Saga cites a Media Bureau decision to
    admonishing a licensee where its station failed to place in its
    public file two letters from the public.[^22] We find these cases to
    be inapposite as they do not involve missing issues-programs lists.
    The \"issues-programs lists are a significant and representative
    indication that a licensee is providing substantial service to meet
    the needs and interests of its community."[^23] The Commission\'s
    public information file rule also safeguards the public\'s ability
    to assess the station\'s service and to meaningfully participate at
    the station\'s renewal process, and helps ensure the station\'s
    accessibility to and nexus with its community, and the station's
    service to the community and responsiveness to community programming
    needs.[^24] As such, the public information requirements are
    integral components of a licensee\'s obligation to serve the public
    interest, and meet its community service obligations.[^25] In the
    *Forfeiture Policy Statement*, the Commission found that the
    omission of even a single item (the issues/programs list) from the
    public inspection file is a serious violation because it
    \"diminishes the public\'s ability to determine and comment on
    whether the station is serving the community.\"[^26] Here, the
    Station's public file was missing five issues over its license term.
    We find that the \$3,000 forfeiture issued was an appropriate
    sanction for Saga's violations.

11. We have considered Saga's Request in light of the above statutory
    factors, our Rules, and the *Forfeiture Policy Statement*. We
    conclude that Saga willfully and repeatedly violated Section 73.3526
    of the Rules. Furthermore, we find that Saga's arguments, raised in
    its Request, do not support cancellation or further reduction of the
    proposed forfeiture amount.

# ORDERING CLAUSES

12. Accordingly, IT IS ORDERED, pursuant to Section 503(b) of the
    Communications Act of 1934, as amended, and Sections 0.283 and 1.80
    of the Commission's Rules,[^27] that Saga Communications of
    Illinois, LLC, SHALL FORFEIT to the United States the sum of \$3,000
    for willfully and repeatedly violating Section 73.3526 of the
    Commission's Rules.

13. 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).[^28]

14. IT IS FURTHER ORDERED, that a copies of this Forfeiture Order shall
    be sent by Certified Mail Return Receipt Requested and by First
    Class Mail, to Saga Communications of Illinois, LLC, 73 Kercheval
    Avenue, Grosse Pointe Farms, Michigan 48236, and to its counsel,
    Gary S. Smithwick, Esq., Smithwick & Belendiuk, P.C., 5028 Wisconsin
    Avenue, N.W., Washington, D.C. 20016.

FEDERAL COMMUNICATIONS COMMISSION

Peter H. Doyle

Chief, Audio Division

> Media Bureau

[^1]: 47 C.F.R. § 73.3536.

[^2]: *See* Application, Exhibit 11.

[^3]: *Notice of Apparent Liability for Forfeiture,* NAL/Acct. No.
    MB-20051810056 (MB Jun. 23, 2005). ("NAL").

[^4]: 47 U.S.C. § 503(b).

[^5]: 47 C.F.R. § 1.80.

[^6]: *The Commission's Forfeiture Policy Statement and Amendment of
    Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines*,
    Report and Order, 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC
    Rcd 303 (1999). ("*Forfeiture Policy Statement*").

[^7]: 47 U.S.C. § 503(b)(2)(E).

[^8]: *Vernon Broadcasting, Inc.*, Memorandum Opinion and Order, 60 RR
    2d 1275 (1986). (\"*Vernon Broadcasting*\").

[^9]: 47 C.F.R. § 73.49(a)(8).

[^10]: 47 U.S.C. § 312(f)(1). The legislative history of Section
    312(f)(1) of the Act clarifies that this definition of willful
    applies to Sections 312 and 503(b) of the Act, H.R. REP. No. 97-765,
    51 (Conf. Rep.), and the Commission has so interpreted the terms in
    the Section 503(b) context. *See Southern California Broadcasting
    Co.,* Memorandum Opinion and Order, 6 FCC Rcd 4387 (1991), *recon.
    denied,* 7 FCC Rcd 3454 (1992). ("*Southern California*").

[^11]: *See PJB Communications of Virginia, Inc*., Memorandum Opinion
    and Order, 7 FCC Rcd 2088 (1992); *Southern California,* 6 FCC Rcd
    at 4387 (stating that "inadvertence ... is at best, ignorance of the
    law, which the Commission does not consider a mitigating
    circumstance").

[^12]: *See Richard Mann d/b/a The Antique Radio Collector Toledo,
    Ohio,* Memorandum Opinion and Order, 23 FCC Rcd. 6920 (EB 2008)
    (denying request to reduce forfeiture based on petitioner's claim
    that it was unaware that its actions constituted a violation of the
    Commission's Rules); *see also Profit Enterprises, Inc.,* Forfeiture
    Order, 8 FCC Rcd 2846 (1993) (denying the mitigation claim of a
    manufacturer/distributor who thought that the equipment
    certification and marketing requirements were inapplicable, stating
    that its "prior knowledge or understanding of the law is unnecessary
    to a determination of whether a violation existed \... ignorance of
    the law is \[not\] a mitigating factor").

[^13]: *See Pittman Broadcasting, LLC*, Forfeiture Order, 23 FCC Rcd
    2742, 2744 (EB 2008). *See also* *Padre Serra Communications, Inc.*,
    Letter, 14 FCC Rcd 9709 (MMB 1999*)* (stating that 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)*(citing Gaffney Broadcasting,
    Inc*., Memorandum Opinion and Order, 23 FCC 2d 912, 913 (1970) and
    *Eleven Ten Broadcasting Corp*., Notice of Apparent Liability, 33
    FCC 706 (1962).

[^14]: Request at 4.

[^15]: 47 U.S.C. § 312(f)(1).

[^16]: *Id. See also Southern California.,* 6 FCC Rcd at 4388 (applying
    this definition of repeated to Sections 312 and 503(b) of the Act).

[^17]: Request at 4.

[^18]: *Id.* at 6.

[^19]: *See* 47 C.F.R. § 1.80, Note to Paragraph (b)(4), Guidelines for
    Assessing Forfeitures. *See also Local Phone Services, Inc.,* Order
    of Forfeiture, 23 FCC Rcd. 8952 (2008) (finding that the issuance of
    a forfeiture despite petitioner\'s voluntary disclosure of its Rule
    violations was appropriate and would not discourage other parties
    from voluntarily disclosing violations of the Act or Rules).

[^20]: *See* NAL at 2. Since 2007, we have declined to reduce forfeiture
    amounts based on a licensee\'s voluntary disclosure because, as
    noted above, although licensees may admit to Section 73.3526 Rule
    violations, they only do so in the context of a question contained
    in the license renewal applications compelling such disclosure.
    *Faith Baptist Church, Inc*., Memorandum Opinion and Order and
    Notice of Apparent Liability for Forfeiture, 22 FCC Rcd 9146, 9148
    (MB 2007); *Geneva Broadcasting, Inc.,* Memorandum Opinion and Order
    and Notice of Apparent Liability for Forfeiture, 21 FCC Rcd. 10642,
    10644 (MB 2006).

[^21]: *See 26296 Southern Entertainment Corporation*, Letter, 20 FCC
    Rcd 11957 (MB 2005), *rescinded on other grounds*, 20 FCC Rcd 12105
    (MB 2005).

[^22]: *See Emmis Television License Corp.,* Memorandum Opinion and
    Order, 19 FCC Rcd 22851 (EB 2004).

[^23]: *See Normandy Broadcasting Corp. and Lawrence N. Brandt*, Initial
    Decision, 8 FCC Rcd 1, 14 (ALJ 1992)(*citing Formulation of Policies
    and Rules to Broadcast Renewal Applicants,* Third Further Notice of
    Inquiry and Notice of Proposed Rule Making, 4 FCC Rcd 6363, 6365
    (1989)).

[^24]: *See Forfeiture Policy Statement*, 12 FCC Rcd at 17104-05 ¶ 39.

[^25]: *See* 47 U.S.C. § 307(a).

[^26]: *See Forfeiture Policy Statement*, 12 FCC Rcd at 17104-05 ¶ 39.

[^27]: 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.283, 1.80.

[^28]: *See* 47 C.F.R. § 1.1914.