**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | Facility ID No. 22805        |
|                                  | *) |                              |
| **Fort Belknap College**         | ** | NAL/Acct. No.                |
|                                  |    | MB-20051810145[^1]           |
| Licensee of Station KGVA(FM),    | *  |                              |
|                                  | *) | FRN: 0007034853              |
| Fort Belknap Agency, Montana     | ** |                              |
|                                  |    | File No. BRED-20041201AEU    |
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+----------------------------------+----+------------------------------+

**FORFEITURE ORDER**

**Adopted: January 27, 2009 Released: January 29, 2009**

By the Chief, Audio Division, Media Bureau:

# INTRODUCTION

1.  In this Forfeiture Order ("Order"), we issue a monetary forfeiture
    in the amount of nine thousand dollars (\$9,000), to Fort Belknap
    College ("Licensee"), licensee of Station KGVA(FM), Fort Belknap
    Agency, Montana ("Station"), for its willful and repeated violation
    of Section 73.3527 of the Commission's Rules ("Rules")[^2] by
    failing to properly maintain a public file for the Station.

# BACKGROUND

2.  On May 24, 2005, the Bureau issued a Notice of Apparent Liability
    for Forfeiture ("NAL") in the amount of nine thousand dollars
    (\$9,000) to Licensee for this violation.[^3] Licensee filed a
    Request for Reduction of Proposed Forfeiture ("Request") on June 23,
    2005.

3.  On January 20, 2004, Licensee filed an application to renew the
    license of the Station. 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 or 73.3527 of the
    Rules, as applicable, has been placed in the station's public
    inspection file at the appropriate times. Licensee indicated "No" to
    that certification, attaching an exhibit explaining that from the
    last quarter of 1997 through the third quarter of 2001, no quarterly
    issues and programs lists were placed in the Station's public file.
    On December 22, 2004, the staff advised Licensee of its apparent
    liability for a forfeiture of \$9,000 for willfully and repeatedly
    violating Section 73.3527 of the Rules, based on the fact that, by
    its admission, several years' worth of issues/programs lists were
    missing from the Station\'s public inspection file between 1997 and
    2001.[^4] In response, Licensee filed the subject Request.

4.  In support of its Request, Licensee states that a reduction or
    cancellation of the forfeiture is warranted because the Station is
    in poor financial condition. Specifically, it claims that payment of
    the proposed forfeiture would divert funds it receives from federal
    grants, thereby diminishing the effectiveness of such grants, and
    limit its ability to provide public service programming. Licensee
    further asserts that the Station has taken remedial steps to ensure
    future compliance with the Rules. Licensee asserts these reasons
    warrant a cancellation or reduction of the assessed forfeiture.

# DISCUSSION

5.  The forfeiture amount proposed in this case was assessed in
    accordance with Section 503(b) of the Act,[^5] Section 1.80 of the
    Rules,[^6] and the Commission's *Forfeiture Policy Statement*.[^7]
    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.[^8]

6.  Licensee contends that payment of the proposed forfeiture would
    divert funding necessary to provide public service programming and
    federal grant money that would otherwise go toward scholarships.[^9]
    These are essentially arguments to support a claim of financial
    hardship.[^10] The Commission will not consider reducing or
    canceling a forfeiture in response to inability to pay unless the
    licensee 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 reflect the
    licensee'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.[^11] In general, a licensee's
    gross revenues are the best indicator of its ability to pay a
    forfeiture.[^12] We recognize that, in some cases, other financial
    indicators, such as net losses, may also be relevant.[^13] If gross
    revenues are sufficiently great, however, the mere fact that a
    business is operating at a loss does not by itself mean that it
    cannot afford to pay.[^14] While Licensee claims that the Station
    operated at a loss from 2002 through 2004, Licensee's financial
    documentation also indicates that its 2003 total gross revenues
    totaled \$6,084,538.[^15] A \$9,000 forfeiture is less than one
    percent of Licensee's total gross revenues. We therefore believe
    that the gross revenues are sufficiently great when

    compared to the forfeiture amount such that the mere fact that the
    Station may be experiencing an operating loss does not demonstrate
    that Licensee cannot afford to pay the forfeiture amount. [^16]

7.  We further reject Licensee's argument that its implementation of new
    measures at the Stations to ensure future compliance is a basis for
    reduction or cancellation of the forfeiture. While we recognize
    Licensee's efforts, corrective action taken to come into compliance
    with the Rules is expected, and does not nullify or mitigate any
    prior forfeitures or violations.[^17]

8.  We have considered Licensee's response to the NAL in light of the
    above statutory factors, our Rules, and the *Forfeiture Policy
    Statement*. We conclude that Licensee willfully[^18] and
    repeatedly[^19] violated Section 73.3527 of the Rules. We find that
    there is no basis for reduction of the proposed monetary forfeiture.

# ORDERING CLAUSES

9.  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,[^20] that Fort Belknap College, SHALL
    FORFEIT to the United States the sum of \$9,000 for willfully and
    repeatedly violating Section 73.3527 of the Commission's Rules.

10. Payment of the forfeiture shall be made in the manner provided for
    in Section 1.80 of the Commission\'s Rules within 30 days of the
    release of this Forfeiture Order. If the forfeiture is not paid
    within the period specified, the case may be referred to the
    Department of Justice for collection pursuant to Section 504(a) of
    the Act.[^21] 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).[^22]

11. IT IS FURTHER ORDERED, that copies of this Forfeiture Order shall be
    sent by Certified Mail Return Receipt Requested and by First Class
    Mail, to: Fort Belknap College, P.O. Box 159, Harlem, Montana 95926,
    and to its counsel, John Crigler, Esq., Garvey Shubert Barer, 1000
    Potomac Street, NW, 5^th^ Floor, Flour Mill Building, Washington, DC
    20007.

FEDERAL COMMUNICATIONS COMMISSION

Peter H. Doyle

Chief, Audio Division

> Media Bureau

[^1]: The NAL/Account Number originally assigned to this case was
    "MB-20051810039." That number had already been designated for
    another Notice of Apparent Liability issued by the Media Bureau.
    Accordingly, we will use "MB-20051810145" here.

[^2]: 47 C.F.R. § 73.3527.

[^3]: *Letter to John Crigler, Esq. from Peter Doyle*, reference
    1800B3-KV (MB May 24, 2005).

[^4]: The Commission granted the above-referenced license renewal
    application on May 24, 2005.

[^5]: 47 U.S.C. § 503(b).

[^6]: 47 C.F.R. § 1.80.

[^7]: *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).

[^8]: 47 U.S.C. § 503(b)(2)(E).

[^9]: Request at 2-3.

[^10]: *See Paulino Bernal Evangelism*, Memorandum Opinion and Order, 21
    FCC Rcd 9532, 9536 (EB 2006) (rejecting licensee's argument that it
    should not be required to pay the proposed forfeiture because it
    would divert funds that would otherwise be used to create public
    interest programming), *rev. granted in part, decision modified by,*
    23 FCC Rcd 15959 (Oct. 28, 2008).

[^11]: *See Discussion Radio, Inc.,* Memorandum Opinion and Order, 19
    FCC Rcd 7433, 7441(Apr. 16, 2004).

[^12]: *PJB Communications of Virginia, Inc.,* Memorandum Opinion and
    Order, 7 FCC Rcd 2088, 2089 (1992) ("*PJB Communications*").

[^13]: *Id*.

[^14]: *Id*.

[^15]: *See* Request, Exhibit at 10.

[^16]: *See, e.g., PJB Communications,* 7 FCC Rcd at 2089 (forfeiture
    not deemed excessive where it represented approximately 2.02 percent
    of the violator\'s gross revenues, despite the fact that licensee
    was operating at a loss); *Hoosier Broadcasting Corporation,*
    Memorandum Opinion and Order, 15 FCC Rcd 8640, 8641 (EB 2002)
    (forfeiture not deemed excessive where it represented approximately
    7.6 percent of the violator\'s gross revenues); *Afton
    Communications Corporation*, Memorandum Opinion and Order, 7 FCC Rcd
    6741 (CCB 1992) (forfeiture not deemed excessive where it
    represented approximately 3.9 percent of the violator\'s gross
    revenues).

[^17]: *Pittman Broadcasting Services, L.L.C*., Forfeiture Order, 23 FCC
    Rcd 2742, 2744 (EB 2008). *See also* *Padre Serra Communications,
    Inc.*, Letter, 14 FCC Rcd 9709, 9714 (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)).

[^18]: 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. 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, 4387-88 (1991), *recon. denied,* 7 FCC Rcd 3453
    (1992) (" *Southern California*").

[^19]: Section 312(f)(1) 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." 47
    U.S.C. § 312(f)(1). *See also Southern California*, 6 FCC Rcd at
    4388 (applying this definition of repeated to Sections 312 and
    503(b) of the Act).

[^20]: 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.283, 1.80.

[^21]: 47 U.S.C. § 504(a).

[^22]: *See* 47 C.F.R. § 1.1914.