[BC] KWVE redux

[Mark Croom]

Well said, Alan. This (mis)use of "willful" has been going on for a while
and I would agree that probably congressional hearings and an amendment to
the Communications Act would be required to end it. It's just like
legal-eagles to want to find liability in anything even if inadvertent,
careless, or even negligent, as opposed to conscious and deliberate.

Applied to the homicide statues, there would be no degrees of murder. It
would all be Murder I punishable by life in prison or death by your legally
sanctioned means (depending on location).

The Commission has some latitude to make decisions based on mitigating
factors, but I have to say it appears there is little willingness to do so,
and personally I see it as very arbitrary; another government agency with a
lot of power exercising it in the realm of "administrative law", outside the
judicial system. To cross those cases over into the judicial system costs a
prohibitively large amount of money so only those with more means than
outfits like us or probably even Calvary Chapel can afford to do so.

Maybe I'm missing something here that one of our attorney members can
clarify for us. I think this could be a useful discussion to have among the
listserv members.

Mark
MN

On Tue, Oct 6, 2009 at 12:58 PM, Alan Kline <akline at netins.net> wrote:

> 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.
>