[BC] KWVE redux

[Alan Kline]

The biggest problem in this instance, and with the current FCC
Enforcement Bureau in general, is the Commission's deliberate distortion
of the definition of "willful" in the Communications Act.

"Willful" is defined by section 312 of the Act thus:

"(f) For purposes of this section:
(1) The term "willful", when used with reference to the commission
or omission of any act, means the *conscious* and *deliberate*
commission or omission of such act, irrespective of any intent to
violate any provision of this Act or any rule or regulation of the
Commission authorized by this Act or by a treaty ratified by the
United States." (emphasis added)

That's *conscious* and *deliberate*. The Commission is distorting the
definition to include *mistaken* and *inadvertent*.

The reason is simple bureaucratic laziness. If the Commission defines
everything, including honest human mistakes, as "willful", they don't
have to put any time or effort into an investigation, and they don't
have to deal with messy details like proving intent. If they define
everything as "willful", it's all very neat, here's where to send the
check, thank you very much. The EB looks like they're actually doing
their job.

I don't know of anyone who wakes up in the morning and consciously
decides, "I'm going to screw up an EAS test today."

The Commission takes the same warped view of "willful" when it comes to
TV kids' show enforcement. Don't even get me started on the "Pokemon"
scandal...

Frankly, if you took these bureaucrats out of the Portals and into a
real-world radio studio or TV MCR, I doubt that they could even find the
EAS box, much less know how it works.

I hold no hope for the bureaucrats fixing this. It's going to take
Congress calling for testimony from some of these bureaucrats to shed
light on why the Commission is deliberately distorting the Act.

I'd be willing to bet that if the courts were presented with the
question of the FCC's interpretation of "willful", the court would
strike it down. The problem is, for this licensee and many others the
court fight would cost far more than the $5000 fine, and the Commission
knows it. As long as that's the case, the Commission will be able to get
away with this crap.

ak

Barry Mishkind wrote:
> I have received an email from the CE at KWVE, and learned two things,
> one I didn't know, one I had surmised.
> 
> 1. The problem started with a complaint by a viewer against the CABLE
> SYSTEM carrying the station, then the FCC came after the station.
> 
> 2. There is a lot of support growing around the country, saying "this
> is too much," and sending material to the FCC that this was a bad move.
> 
> We can hope the bureaucrats who put this in motion will bring it to an end.