Federal Communications Commission

DA 07-1479

Before the
Federal Communications Commission
Washington, D.C. 20554
In re Application of
The University of Southern Mississippi
For Renewal of License for
Station WUSM-FM
Hattiesburg, Mississippi

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Facility I.D. No. 69214
NAL/Acct. No. MB200741410298
FRN: 0010694776
File No. BRED-20040602AAZ

MEMORANDUM OPINION AND ORDER
AND
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: March 27, 2007

Released: March 29, 2007

By the Chief, Media Bureau:
I.

INTRODUCTION

1.
The Commission has before it the captioned application of the University of Southern
Mississippi (the “Licensee”) for renewal of its license for noncommercial educational Station WUSMFM, Hattiesburg, Mississippi (the “Station”). In this Memorandum Opinion and Order and Notice of
Apparent Liability for Forfeiture (“NAL”) issued pursuant to Sections 309(k) and 503(b) of the
Communications Act of 1934, as amended (the “Act”), and Section 1.80 of the Commission’s Rules (the
“Rules”), 1 by the Chief, Media Bureau by authority delegated under Section 0.283 of the Rules,2 we find
that the Licensee apparently willfully violated Section 73.3539 of the Rules, by failing to timely file a
license renewal application for the Station, 3 and Section 301 of the Act,4 by engaging in the unauthorized
operation of the Station after its authorization had expired. Based upon our review of the facts and
circumstances before us, we conclude that the Licensee is apparently liable for a monetary forfeiture in
the amount of three thousand five hundred dollars ($3,500), and we grant the captioned WUSM-FM
license renewal application.
II.

BACKGROUND

2.
Section 73.3539(a) of the Rules requires that applications for renewal of license for
broadcast stations must be filed “not later than the first day of the fourth full calendar month prior to the
expiration date of the license sought to be renewed.”5 An application for renewal of WUSM-FM’s
license should have been filed by February 1, 2004. No such application was filed, and the Station’s
license expired on June 1, 2004. The Licensee did not file the application until June 2, 2004, one day
after the Station’s license had expired. The Licensee provides no explanation for its failure to file a
timely renewal application.

1

47 U.S.C. §§ 309(k), 503(b); 47 C.F.R. § 1.80.

2

See 47 C.F.R. § 0.283.

3

See 47 C.F.R. § 73.3539.

4

See 47 U.S.C. § 301.

5

47 C.F.R. § 73.3539(a).

Federal Communications Commission
III.

DA 07-1479

DISCUSSION

3.
Proposed Forfeiture. In this case, the Licensee has failed to timely file a license renewal
application for the Station, as required by Section 73.3539 of the Rules. Moreover, it continued operating
the Station for one day after the license had expired on June 1, 2004, before filing the appropriate renewal
application, never seeking special temporary authority (“STA”) to so operate.
4.
This NAL is issued pursuant to Section 503(b)(1)(B) of the Act. Under that provision, any
person who is determined by the Commission to have willfully or repeatedly failed to comply with any
provision of the Act or any rule, regulation, or order issued by the Commission shall be liable to the
United States for a forfeiture penalty. 6 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.7 The
legislative history to Section 312(f)(1) of the Act clarifies that this definition of willful applies to both
Sections 312 and 503(b) of the Act,8 and the Commission has so interpreted the term in the Section
503(b) context.9
5.
The Commission’s Forfeiture Policy Statement and Section 1.80(b)(4) of the Rules
establish a base forfeiture amount of $3,000 for the failure to file a required form.10 The guidelines also
specify a base forfeiture amount of $10,000 for station construction and/or operation without an
instrument of authorization for the service. 11 In determining the appropriate forfeiture amount, we may
adjust the base amount upward or down ward by considering the factors enumerated in Section
503(b)(2)(D) of the Act, including “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.”12
6.
In this case, the Licensee failed to timely file the WUSM-FM renewal application and
continued operating the Station for one day before filing the appropriate application. Nevertheless,
because it had previously been licensed to operate the Station, the latter transgressions are not comparable
to "pirate" wireless operations, which typically have been subject to forfeitures of approximately $10,000.
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 forfeiture for the full $3,000 amount for the failure to
timely file the renewal application, and, in light of the duration of the Licensee’s period of unauthorized
operation, reduce the base amount for that violation and propose a forfeiture of $500 for the unauthorized
operation. Thus, we propose a forfeiture in the total amount of $3,500.
7.
License Renewal Application. In evaluating an application for license renewal, the
Commission’s decision is governed by Section 309(k) of the Act.13 That Section provides that if, upon
consideration of the application and pleadings, we find that: (1) the station has served the public interest,
6

47 U.S.C. § 503(b)(1)(B). See also 47 C.F.R. § 1.80(a)(1).

7

47 U.S.C. § 312(f)(1).

8

See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982).

9

See Southern California Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991).

10

See Forfeiture Policy Statement and Amendment of Section 1.80(b) of the Rules to Incorporate the Forfeiture
Guidelines, Report and Order, 12 FCC Rcd 17087, 17113-15 (1997) (“Forfeiture Policy Statement”), recon. denied,
15 FCC Rcd 303 (1999); 47 C.F.R. § 1.80(b)(4), note to paragraph (b)(4), Section I.
11

A broadcast station requires an authorization from the Commission to operate. See 47 U.S.C. § 301.

12

47 U.S.C. § 503(b)(2)(D); see also Forfeiture Policy Statement, 12 FCC Rcd at 17100-01; 47 C.F.R. § 1.80(b)(4);
47 C.F.R. § 1.80(b)(4), note to paragraph (b)(4), Section II.
13

47 U.S.C. § 309(k).

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Federal Communications Commission

DA 07-1479

convenience, and necessity; (2) there have been no serious violations of the Act or the Rules; and (3)
there have been no other violations which, taken together, constitute a pattern of abuse, we are to grant
the renewal application.14 If, however, the licensee fails to meet that standard, the Commission may deny
the application – after notice and opportunity for a hearing under Section 309(e) of the Act – or grant the
application “on terms and conditions that are appropriate, including a renewal for a term less than the
maximum otherwise permitted.”15
8.
We find that the Licensee’s apparent violations of Section 73.3539 of the Rules and
Section 301 of the Act do not constitute “serious violations” warranting designation for evidentiary
hearing. Moreover, we find no evidence of violations that, when considered together, evidence a pattern
of abuse.16 Further, we find that Station WUSM-FM served the public interest, convenience, and
necessity during its subject license term. We will therefore grant the license renewal application below.
IV.

ORDERING CLAUSES

9.
Accordingly, IT IS ORDERED, pursuant to Section 503(b) of the Communications Act
of 1934, as amended, and Section 1.80 of the Commission’s Rules, that the University of Southern
Mississippi is hereby NOTIFIED of its APPARENT LIABILITY FOR FORFEITURE in the amount of
three thousand five hundred dollars ($3,500) for the apparent willful violation of Section 73.3539 of the
Commission’s Rules and of Section 301 of the Communications Act of 1934, as amended.
10.
IT IS FURTHER ORDERED, pursuant to Section 1.80 of the Commission’s Rules, that,
within thirty (30) days of the release date of this NAL, the University of Southern Mississippi SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
11.
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 above. Payment by check or money order may be mailed to Federal
Communications Commission, at P.O. Box 358340, Pittsburgh, Pennsylvania 15251-8340. Payment by
overnight mail may be sent to Mellon Bank/LB 358340, 500 Ross Street, Room 1540670, Pittsburgh,
Pennsylvania 15251. Payment by wire transfer may be made to ABA Number 043000261, receiving bank
Mellon Bank, and account number 911-6106.
12.
The response, if any, must be mailed to Office of the Secretary, Federal Communications
Commission, 445 12th Street, S.W., Washington D.C. 20554, ATTN: Peter H. Doyle, Chief, Audio
Division, Media Bureau, and MUST INCLUDE the NAL/Acct. No. referenced above.

14

47 U.S.C. § 309(k)(1). The renewal standard was amended to read as described by Section 204(a) of the
Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996). See Implementation of Sections
204(a) and 204(c) of the Telecommunications Act of 1996 (Broadcast License Renewal Procedures), Order, 11 FCC
Rcd 6363 (1996).
15

47 U.S.C. §§ 309(k)(2), 309(k)(3).

16

For example, we do not find here that the Licensee's operation of the Station "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 Stations, Decision, 32 FCC 2d 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 Stations, 32 FCC 2d at 200. See also Center for Study and
Application of Black Economic Development, Hearing Designation Order, 6 FCC Rcd 4622 (1991), Calvary
Educational Broadcasting Network, Inc., Hearing Designation Order, 7 FCC Rcd 4037 (1992).

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Federal Communications Commission

DA 07-1479

13.
The Commission will not consider reducing or canceling a forfeiture in response to a
claim of inability to pay unless the respondent submits: (1) federal tax returns for the most recent threeyear period; (2) financial statements prepared according to generally accepted accounting practices
(“GAAP”); or (3) some other reliable and objective documentation that accurately reflects the
respondent’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.
14.
Requests for full payment of the forfeiture proposed in this NAL under the installment
plan should be sent to: Associate Managing Director-Financial Operations, 445 12th Street, S.W., Room
1-A625, Washington, D.C. 20554.17
15.
IT IS FURTHER ORDERED that, pursuant to Section 309(k) of the Communications
Act of 1934, as amended, the license renewal application of the University of Southern Mississippi for
Station WUSM-FM, Hattiesburg, Mississippi (File No. BRED-20040602AAZ) IS GRANTED.
16.
IT IS FURTHER ORDERED, that copies of this NAL shall be sent, by First Class and
Certified Mail, Return Receipt Requested, to Mr. Michael Davis, The University of Southern Mississippi,
118 College Drive, #10045, Hattiesburg, Mississippi 39406.
FEDERAL COMMUNICATIONS COMMISSION

Monica Shah Desai
Chief, Media Bureau

17

See 47 C.F.R. § 1.1914.

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