In re R.J.'S Late Night Entertainment Corp., EB-10-DT-0039

CourtFederal Communications Commission Decisions
Writing for the CourtWilliam Davenport Deputy Chief Enforcement Bureau
Decision Date09 February 2015
PartiesIn the Matter of R.J.'s Late Night Entertainment Corporation Licensee of Station WHPR-FM Highland Park, Michigan
Docket NumberEB-10-DT-0039,DA 15-181

In the Matter of R.J.'s Late Night Entertainment Corporation Licensee of Station WHPR-FM Highland Park, Michigan

No. EB-10-DT-0039

No. DA 15-181

Federal Communications Commission

February 9, 2015


Adopted: February 9, 2015

FIELDNER-12-00004557 NAL/Acct. No.: 2012323600002 FRN: 0011011509

MEMORANDUM OPINION AND ORDER

William Davenport Deputy Chief Enforcement Bureau

By the Deputy Chief, Enforcement Bureau:

I. INTRODUCTION

1. We deny the Petition for Reconsideration filed by R.J.'s Late Night Entertainment Corporation (RJLNE) seeking reconsideration of a Forfeiture Order issued by the Enforcement Bureau. In the Forfeiture Order, the Enforcement Bureau imposed a penalty of $22, 000 against RJLNE for failing to maintain operational Emergency Alert System (EAS) equipment, operate its FM station's transmitter from its authorized location, and make available its station's public inspection file. Although we recognize that RJLNE submitted a timely response to the Enforcement Bureau's Notice of Apparent Liability for Forfeiture and Order in this case, RJLNE's response does not provide sufficient basis for reconsideration of the imposed penalty. RJLNE's violations were willful and repeated, and its subsequent remedial actions to come into compliance do not warrant a forfeiture reduction.

II. BACKGROUND

2. On October 24, 2011, the Enforcement Bureau's Detroit Office issued a Notice of Apparent Liability for Forfeiture and Order (NAL) proposing a $22, 000 penalty against RJLNE for apparently willfully and repeatedly violating Sections 11.35(a), 73.1690(b)(2), and 73.3527(b)(1) of the Commission's rules (Rules).[1] The Enforcement Bureau subsequently issued a Forfeiture Order imposing the $22, 000 penalty against RJLNE after finding that it failed to file a timely response to the NAL.[2] In response, RJLNE filed a Petition for Reconsideration of the Forfeiture Order (Petition), stating that it "did respond to the NAL, and [its] response was on time."[3] The Petition contained a copy of RJLNE's response to the NAL, in which RJLNE requested reduction of the proposed penalty because it had "no intent to violate the Communications Act."[4] The NAL Response also requested a forfeiture reduction based on RJLNE's efforts to correct the EAS, unauthorized operation, and public file violations following the Enforcement Bureau's inspection of its station.[5]

III. DISCUSSION

3. Petitions for reconsideration are granted only in limited circumstances. Reconsideration is appropriate only when the petitioner either demonstrates a material error or omission in the underlying order or raises additional facts not known or not existing until after the petitioner's last opportunity to present such matters.[6] RJLNE's Petition fails to present such information warranting reconsideration.

4. RJLNE asserts that it submitted a timely response to the NAL.[7] However, RJLNE admits that it mistakenly filed its NAL Response with the FCC's Headquarters in Washington, D.C., instead of the Enforcement Bureau's Detroit Office as required by the NAL.[8] But while we accept the NAL Response as timely filed, we find that RJLNE did not provide sufficient grounds for reconsideration of the imposed forfeiture.

5. RJLNE argues that a forfeiture reduction is warranted because it did not intend to violate the Communications Act or the Rules.[9] As explained in the NAL, the "conscious and deliberate commission or omission" of any act that violates the Communications Act or the Rules renders a violation willful, regardless of whether the party intended to violate the law.[10] In its NAL Response, RJLNE did not deny that it operated its station's transmitter from an unauthorized location and failed to maintain required EAS equipment or its public inspection file. As a result, we find that RJLNE willfully violated the Rules. To the extent that RJLNE suggests that it was unaware that its actions violated the law, this lack of knowledge is "at best, ignorance of the law, which the Commission does not consider a mitigating circumstance."[11]RJLNE also conceded that the violations continued for extended periods of time.[12] As a result, even if we did not find RJLNE's violations willful, they were nevertheless repeated.[13]

6. RJLNE also requests a forfeiture reduction based on its remedial actions to resolve its EAS, unauthorized operation, and public inspection file violations.[14] Specifically, RJLNE states that it installed the required EAS equipment, received Commission permission to operate its transmitter from a new location, and established a public inspection file at its main studio.[15] While the Commission will generally reduce an assessed forfeiture based on the good faith corrective efforts of a violator, those corrective efforts must be taken prior to notification of the violation.[16] As the Commission has repeatedly stated, "corrective action taken to come into compliance with Commission rules or policy is expected, and does not nullify or mitigate any prior forfeitures or violations."[17] Consequently, RJLNE's remedial efforts to comply with the Rules following the inspection of its station do not justify a forfeiture reduction.

7. We therefore find that RJLNE fails to present information warranting reconsideration of the $22, 000 forfeiture and deny the Petition.

IV. ORDERING CLAUSES

8. Accordingly, IT IS ORDERED that, pursuant to Section 405 of the Communications Act of 1934, as amended (Act), [18] and Section...

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