**DA 08-2508**

*In Reply Refer to:*

1800B3-VM

NAL/Acct No.: MB20041810026

FRN: 0001754217

Released: November 14, 2008

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

Mr. Harry C. Martin, Esq.

Fletcher, Heald and Hildreth, PLC

1300 North 17^th^ Street

11^th^ Floor

Arlington, VA22209

In re: WQEM(FM), Columbiana, AL

Glen Iris Baptist School

Facility ID: 41641

File No. BRED-20031206BQL

Dear Mr. Martin:

The Chief, Audio Division, has before him the July 13, 2004, letter
filed on behalf of Glen Iris Baptist School ("Glen Iris"), licensee of
Station WQEM(FM), Columbiana, Alabama.[^1] The Response requests
reduction or cancellation of a June 21, 2004, Notice of Apparent
Liability for a Forfeiture ("NAL") in the amount of three thousand
dollars (\$3,000) for violations of Section 73.3527[^2] of the
Commission\'s Rules (the \"Rules\") regarding Glen Iris's failure to
maintain station WQEM(FM)'s public inspection file.[^3] By this action,
we cancel the NAL and admonish Glen Iris for violating Section 73.3527
of the Rules.

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, as applicable, has been placed
in the station's public inspection file at the appropriate times. Glen
Iris indicated "No" to that certification, attaching an Exhibit 11
supplement explaining that it purchased the station on January 22, 2003,
and that when it reviewed the public file in connection with the
renewal, it found no issues/programs lists for the entire term, from
April 1, 1996, through December 31, 2002, predating Glen Iris's
ownership of the Station. It stated that it had recreated the
issues/programs lists for which it would have been responsible as
licensee, all four quarters of 2003, and placed them in the public file.
In its Exhibit 11 supplement, Glen Iris also notes that it has
instituted a system to avoid this omission in the future.

On June 21, 2004, the Bureau issued the NAL for a violation of Section
73.3526 of the Rules for its failure to maintain an issues/programs list
for the four quarters of 2003. On July 13, 2004, Glen Iris submitted a
response to the NAL seeking reduction of the proposed forfeiture based
on forfeitures levied on other licensees with similar violations. Glen
Iris asserts that the Commission's basis for the forfeiture is based on
the incorrect assumption that it failed to maintain its issues/programs
lists for four quarters. It points out that, although it prepared and
filed the fourth quarter's issues/programs list prior to filing its
renewal application, it was not required to do so until January 10,
2004, which was after the renewal deadline of December 1, 2003.
Accordingly, it contends that its forfeiture should be based on three,
rather than four, missing issues/programs lists.[^4] Glen Iris argues
that it did keep records of all its programming, albeit not in the form
required by Section 73.3527 of the Rules, and that, in light of the
circumstances here, the forfeiture amount is excessive.

The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Communications Act of 1934, as amended
(\"Act\"),[^5] Section 1.80 of the Rules,[^6] and The Commission\'s
*Forfeiture Policy Statement*.[^7] In examining Glen Iris's response,
Section 503(b) of the Act requires that the Commission 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 other such matters as justice may
require.[^8]

Section 73.3527 of the Rules requires commercial broadcast stations to
maintain a public inspection file containing, among other things, "radio
issues/programs lists."[^9] It is undisputed that the issues/programs
list for the first three quarters of 2003 were missing from the WQEM(FM)
public inspection file from the time Glen Iris took ownership of the
station on January 22, 2003, until it reviewed the file in preparation
for the renewal application in December 2003. Glen Iris contends that it
is a school-operated station with no professional management whose staff
was unaware of the requirement to maintain an issues/programs list, but
that it has recreated all of the documents it was required to maintain
during its short tenure as licensee. However, it is established
Commission policy that there is no proposed forfeiture exemption or
reduction based on the non-commercial status of a station.[^10]
Furthermore, where lapses occur in maintaining the public file, neither
the negligent acts nor omissions of station employees or agents, nor the
subsequent remedial actions undertaken by the licensee, excuse or
nullify a licensee's rule violation*.*[^11] We conclude that
willfully[^12] and repeatedly[^13] violated Section 73.3527 of the
Rules.

Glen Iris posits that its actions were mitigated by the facts that 75%
of its programming was directed to community concerns through a
religious talk show format, and that it kept records of all of its
programming, albeit in a different form than the issues/programs
list.[^14] We disagree. 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.[^15] 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 ensure the station\'s
accessibility to and nexus with its community, to serve and respond to
community programming needs.[^16] 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.[^17] 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.\"[^18] Therefore, the violation is
not mitigated by the licensee's perception that no harm was committed by
the omission of the issues/programs lists.

Although Glen Iris admits that it failed to maintain its public
inspection file, it contends that the Commission\'s assessed forfeiture
amount is excessive.[^19] We agree. At the time we issued the NAL, the
forfeiture amount was based on Glen Iris's own statement that it had
four missing issues/programs lists. In light of our determination that
the correct number of missing issues/programs lists for which Glen Iris
was responsible is three, rather than four, we will cancel the
forfeiture and issue an admonishment. In adopting the forfeiture
guidelines and implementing rules, the Commission stated that it \"will
initially assess . . . violations \[of the Act and the Commission\'s
Rules\] at the statutory amount,\" but, as appropriate, will adjust the
base amount upward or downward based on the factors set out in Section
503 of the Act and particular facts presented in each case.[^20]
Although the Commission has rejected arguments that characterize
violations of the public file rule as minor and deserving of reduced
forfeitures,[^21] considering the record as a whole, and staff practice
in similar cases, we believe that an admonishment, rather than a
forfeiture, is appropriate for the violation in this case.[^22]

In view of the foregoing, Glen Iris's July 13, 2004, response to our
June 14, 2004, NAL in the amount of \$3,000 IS GRANTED, and the Notice
of Apparent Liability (NAL/Acct. No. MB-20041810026) for violation of
the public inspection file rule is HEREBY CANCELLED. Glen Iris Baptist
School is instead hereby ADMONISHED for its violation of 47 C.F.R. §
73.3527.

Sincerely,

Peter H. Doyle, Chief

Audio Division

Media Bureau

cc: Harry C. Martin, Esq.

[^1]: Response to Notice of Apparent Liability for Forfeiture, filed by
    Glen Iris Baptist School, on July 13, 2004 ("Response").

[^2]: 47 C.F.R. § 73.3527.

[^3]: *Letter to Harry C. Martin, Esq.¸* Reference 1800B3-SS (Jun. 21,
    2004).

[^4]: *See* Response at 3. Glen Iris consents to payment of a \$1,000
    forfeiture for the three missing issues/programs lists. *Id.*

[^5]: 47 U.S.C. § 503(b).

[^6]: 47 C.F.R. § 1.80.

[^7]: *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*\").

[^8]: 47 U.S.C. § 503(b)(2)(D).

[^9]: 47 C.F.R. §§ 73.3527(a), 73.3527(e)(8).

[^10]: *See* *Bible Broadcasting Network, Inc*., Forfeiture Order, 23
    FCC Rcd. 8743 (MB 2008) (rejecting argument that forfeiture should
    be cancelled or reduced because of noncommercial educational
    status); *see also Lebanon Educational Broadcasting Foundation*, .,
    Memorandum Opinion and Order, 21 FCC Rcd 1442, 1446 (EB 2006)
    (\"Where the Rule is violated, Section 1.80 provides that a monetary
    forfeiture may be imposed, and there is no exemption or reduction
    based on the noncommercial status of a station\").

[^11]: *See Padre Serra Communications, Inc.*, Letter, 14 FCC Rcd 9709
    (1999), 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); *Surrey
    Front Range Limited Partnership*, Notice of Apparent Liability, 7
    FCC Rcd 6361 (FOB 1992).

[^12]: 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*, 6 FCC Rcd at 4387-88.

[^13]: 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).

[^14]: *See* Supplement to Exhibit 11.

[^15]: *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).

[^16]: *See Forfeiture Policy Statement,* 12 FCC Rcd at 17104-05 ¶ 39.

[^17]: *See* 47 U.S.C. § 307(a).

[^18]: *See Forfeiture Policy Statement*, 12 FCC Rcd at 17104-05 ¶ 39.

[^19]: Response at 3.

[^20]: *See Forfeiture Policy Statement*, 12 FCC Rcd at 17100 ¶ 26.

[^21]: *Id.* at 17104-05 ¶ 39.

[^22]: *See* note to 47 C.F.R. § 1.80(b)(4). *See also, EZ New Orleans,
    Inc.,* Memorandum Opinion and Order, 15 FCC Rcd 7164 (1999) (renewal
    granted and licensee admonished for failure to comply with public
    file rule); *American Family Association,* Memorandum Opinion and
    Order, 18 FCC Rcd 16530 (EB 2003) (NAL cancelled and licensee
    admonished based on response to NAL).