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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-02-PA-200
Minority Business and Housing Development Inc. )
NAL/Acct. No. 200332400003
Uniondale, New York ) FRN: 0007-5125-28
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December 30,
By the District Director, Philadelphia Office, Enforcement
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that Minority Business and Housing
Development, Inc. (``Minority Business''), the licensee of radio
station WYGG, has apparently violated Sections 11.35(a) and
73.1350(a) of the Commission's Rules (the ``Rules'').1 These
sections respectively, require that the station have installed an
operational EAS system, and that the station operate in
accordance with the terms of the station authorization. We
conclude that Minority Business is apparently liable for a
forfeiture in the amount of thirteen thousand dollars ($13,000).
2. On February 20, 2002, the Philadelphia Office received
information that Minority Business was operating station WYGG
with an excessive antenna height. In response, the Philadelphia
Office assigned an FCC agent to inspect the station. During the
inspection on April 26, 2002, the FCC agent found that Minority
Business had mounted WYGG's antenna on the roof of a 13-story
building at 601 Bangs Avenue, Asbury Park, New Jersey at an
overall height above ground level of 43.9 meters (144 feet). The
station's license (File No. BLED-19990304KZ) authorizes Minority
Business to operate WYGG at 517 Cookman Avenue, Asbury Park, New
Jersey with an antenna height of 14 meters (45.9 feet) above
ground level The FCC agent also attempted to inspect WYGG's
Emergency Alert System ("EAS") equipment. Mr. Rodrique Cole, the
operator on duty, informed the FCC agent that Minority Business
never installed EAS equipment at the station.
3. On May 30, 2002, the Philadelphia Office issued a
Notice of Violation to Minority Business, for failing to install
and operate EAS equipment and for exceeding the authorized
antenna height of station in violation of the Rules.
4. Because Minority Business did not file a response to
the Notice of Violation, an FCC agent re-inspected station WYGG
on July 8, 2002 to determine if the violations had been
corrected. The agent found that Minority Business was still
operating station WYGG from the roof of the building at 601 Bangs
Avenue, Asbury Park, New Jersey, exceeding WYGG's authorized
antenna height by 29.9 meters, and had not installed EAS
equipment at the station. On July 24, 2002, the Philadelphia
Office issued a second Notice of Violation to Minority Business
for failing to install and operate EAS equipment and for
exceeding the authorized antenna height of station in violation
of the Rules.
5. By letter dated July 31, 2002, Minority Business
submitted a response to the Notices of Violation. In the
response, Minority Business acknowledged the violations and
stated that it reduced WYGG's power from 100 to 50 watts as
directed by its engineering consultant, Sterling Communications.2
Minority Business also requested a three-month extension to
install the EAS equipment because it was trying to raise the
money for the purchase of the equipment.
6. By email dated August 9, 2002, Mr. James Price of
Sterling Communications informed the Philadelphia Office that he
filed an application for construction permit with the FCC on
behalf of Minority Business, which proposed to operate station
WYGG at 601 Bangs Avenue, Asbury Park, New Jersey with an antenna
height of 43.9 meters above ground. Mr. Price also stated that
he would file a request for Special Temporary Authority (``STA'')
with the FCC on behalf of Minority Business to operate WYGG at
variance from the facilities authorized in the station's license
until the construction permit was granted.
7. Section 11.35(a) of the Rules states that broadcast
stations are responsible for ensuring that EAS Encoders, EAS
Decoders and Attention Signal generating and receiving equipment
used as part of the EAS are installed so that the monitoring and
transmitting functions are available during the times the
stations and systems are in operation. On April 26, 2002 and
July 8, 2002, Minority Business did not have installed and
operational any EAS equipment at radio station WYGG.
8. Section 73.1350(a) of the Rules states that each
licensee is responsible for maintaining and operating its
broadcast station in a manner which complies with the technical
rules set forth elsewhere in this part and in accordance with the
terms of the station authorization. On April 26, 2002 and July
8, 2002, Minority Business operated WYGG with an antenna height
that exceeded the station's authorized antenna height by 29.9
9. Based on the evidence before us, we find that Minority
Business apparently willfully3 and repeatedly4 violated Sections
11.35(a) and 73.1350(a) of the Rules. The Commission's
Forfeiture Policy Statement and Amendment of Section 1.80 of the
Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087,
17113 (1997), recon. denied, 15 FCC Rcd 303 (1999) (``Forfeiture
Policy Statement'')5, sets the base forfeiture amount for failure
to install and operate EAS equipment at $8,000, and for exceeding
the authorized antenna height at $5000. In assessing the
monetary forfeiture amount, we must take into account the
statutory factors set forth in Section 503(b)(2)(D) of the
Communications Act of 1934,6 (the ``Act''), as amended, which
include 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. Applying the
Forfeiture Policy Statement and the statutory factors to the
instant case and applying the inflation adjustments, we believe
that a thirteen thousand dollar ($13,000) monetary forfeiture is
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act7, and Sections 0.111, 0.311 and 1.80 of the
Rules8, Minority Business and Housing Development, Inc. is hereby
NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the amount
of thirteen thousand dollars ($13,000) for exceeding WYGG's
authorized antenna height and failing to install and operate EAS
equipment at station WYGG.
11. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Rules, within thirty days of the release date of this NOTICE
OF APPARENT LIABILITY, Minority Business and Housing Development,
Inc. SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation
of the proposed forfeiture.
12. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note the
NAL/Acct. No. 200332400003 and FRN: 0007-5125-28.
13. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Technical and
Public Safety Division, 445 12th Street, S.W., Washington, D.C.
20554 and MUST INCLUDE THE NAL/Acct. No. 200332400003 and FRN:
14. The Commission will not consider reducing or canceling
a forfeiture in response to a claim of inability to pay unless
the petitioner submits: (1) federal tax returns for the most
recent three-year period; (2) financial statements prepared
according to generally accepted accounting practices (``GAAP'');
or (3) some other reliable and objective documentation that
accurately reflects the petitioner's current financial status.
Any claim of inability to pay must specifically identify the
basis for the claim by reference to the financial documentation
15. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Revenue and Receivables Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.9
16. Under the Small Business Paperwork Relief Act of 2002,
Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the FCC is
engaged in a two-year tracking process regarding the size of
entities involved in forfeitures. If you qualify as a small
entity and if you wish to be treated as a small entity for
tracking purposes, please so certify to us within thirty (30)
days of this NAL, either in your response to the NAL or in a
separate filing to be sent to the Technical and Public Safety
Division. Your certification should indicate whether you,
including your parent entity and its subsidiaries, meet one of
the definitions set forth in the list provided by the FCC's
Office of Communications Business Opportunities (OCBO) set forth
in Attachment A of this Notice of Apparent Liability. This
information will be used for tracking purposes only. Your
response or failure to respond to this question will have no
effect on your rights and responsibilities pursuant to Section
503(b) of the Communications Act. If you have questions
regarding any of the information contained in Attachment A,
please contact OCBO at (202) 418-0990.
17. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail, Return
Receipt Requested, to Minority Business and Housing Development,
Inc., 612 Leonard Avenue, Uniondale, New York 11553.
John E. Rahtes
Attachment A - FCC's List of Small Entities.
1 47 C.F.R. §§ 11.35(a) and 73.1350(a).
2 When Minority Business increased WYGG's antenna height from 14
meters to 43.9 meters, Minority Business effectively extended
WYGG's coverage area, as defined by the 60 dBm contour. Sterling
Communications directed Minority Business to reduce WYGG's
effective radiated power (``ERP'') from 100 Watts to 50 Watts to
prevent the station's existing 60 dBm contour from extending
beyond its authorized 60 dBm contour.
3 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to Section 503(b) of the Act, provides that ``[t]he 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 ....'' See Southern California
Broadcasting Co., 6 FCC Rcd 4387 (1991).
4 Section 312(f)(2), which also applies to Section 503(b),
provides: [t]he term ``repeated'', when used with reference to
the commission or omission of any act, means the commission or
omission of such act more than once or, if such commission or
omission is continuous, for more than one day.
5 47 C.F.R. § 1.80.
6 47 U.S.C § 503(b)(2)(D).
7 47 U.S.C § 503(b)
8 47 C.F.R. §§ 0.111 and 0.311.
9 See 47 C.F.R. § 1.1914.