Click here for Adobe Acrobat version
Click here for Microsoft Word version
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File Number: EB-02-NF-101
Commonwealth Broadcasting, L.L.C. ) NAL/Acct.: No.200332640004
Licensee of FM Radio Station )
WEXM, Exmore, Virginia ) FRN: 0004988002
Norfolk, Virginia )
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
By the Enforcement Bureau, Norfolk Office: Released:
April 2, 2003
1. In this Notice of Apparent Liability for
Forfeiture (``NAL''), we find Commonwealth Broadcasting
L.L.C. (``Commonwealth'), licensee of FM radio station WEXM,
Exmore, Virginia, apparently liable for a forfeiture in the
amount of eight thousand dollars ($8,000) for willful and
repeated violation of Sections 73.1125(a) and 73.1201(b) of
the Commission's Rules (``Rules'').1 Specifically, we find
Commonwealth apparently liable for failing to maintain a
presence at its main studio during normal business hours,
and failing to transmit official station identification.
2. On July 18, 2002, an agent of the FCC Enforcement
Bureau's Norfolk Office attempted to conduct an inspection
of commercial FM broadcast station WEXM, licensed to serve
Exmore, Virginia. Commonwealth is licensed to operate WEXM
on a frequency of 106.1MHz in the FM broadcast band. The
local telephone book did not contain a listing for WEXM so
the agent used direction-finding techniques to locate WEXM's
transmitter at coordinates North 37 31' 46'', West 075 54'
44'', in Exmore, Virginia. The building at the transmitter
site was locked and vacant. Subsequent investigation
revealed that on July 30, 2002, Commonwealth reported to the
Commission that its main studio had been moved to 316
Randolph Ave., Cape Charles, Virginia.
3. On August 27, 2002, the agent telephoned, and a
Cape Charles Police officer visited, WEXM's main studio
address at 316 Randolph Ave, Cape Charles, Virginia, during
normal business hours. There was no answer to the telephone
call. The police officer reported that there were no signs
or markings on the office at the listed address identifying
the location of WEXM's main studio. In addition, the office
door was locked, the lights were out, there were no office
hours denoted on the door and no indication of why the
office was closed.
4. On November 26, 2002, the agent telephoned and
visited the listed address of WEXM's main studio location,
316 Randolph Ave., Cape Charles, Virginia, during normal
business hours. There was no answer to the telephone call.
When the agent arrived at the listed address, there were no
signs or markings on the office to identify the location of
WEXM's main studio. The door to the office was locked, the
lights were out, there were no office hours denoted on the
door and no indication of why the office was closed.
5. On November 27, 2002, the agent telephoned
Commonwealth's Norfolk, Virginia office location. During
that telephone conversation, a Commonwealth employee
admitted that no one was present at WEXM's Cape Charles,
Virginia location because of ``...the long holiday
6. Also, on November 27, 2002, the agent again
telephoned and visited the listed address of WEXM's main
studio location during normal business hours. Still, there
was no answer to the telephone call, the main studio
location remained locked, unlit, unoccupied, absent of any
identifying markings, no signs of office hours and no
indication of why the office was closed.
7. On July 18, 2002, from 12:45pm to 2:07pm, November
27, 2002, from 11:45am to 12:11pm, and December 4, 2002,
from 10:50am to 11:10am and from 12:50pm to 1:10pm, the
agent monitored the transmissions of WEXM. During those
times, WEXM simulcast the programming of WKOC, 93.7 MHz
Chesapeake, Virginia, and identified only as ``... 93.7, the
Coast ....'' The official station identification for WEXM
was not broadcast during those times.
8. Section 73.1125(a) of the Rules states that each
AM, FM, or TV broadcast station shall maintain a studio at
one of the following locations: (1) within the station's
community of license; (2) at any location within the
principal community contour of any AM, FM, or TV broadcast
station licensed to the station's community of license; or
(3) within twenty-five miles from the reference coordinates
of the center of its community of license as described in
§73.208(a)(1). In adopting the main studio rules, the
Commission stated that the station's main studio must have
the capability to serve the needs and interests of the
residents of the station's community of license.2 To
fulfill this function, a station must, among other things,
maintain a meaningful presence at its main studio.3 The
Commission has defined a minimally acceptable ``meaningful
presence'' as full-time managerial and full-time staff
personnel.4 The licensee need not have the same staff
person and manager at the studio, as long as there was
management and staff presence there during normal business
hours.5 Although management personnel need not be ``chained
to their desks'' during normal business hours, they must
``report at the main studio on a daily basis, spend a
substantial amount of time there and ... use the studio as a
home base.''6 On August 27, November 26 and November 27,
2002, no person was present at WEXM's main studio at its
listed address in Cape Charles, Virginia, during normal
business hours. On each day, the main studio was locked,
unlit and unoccupied. There was no notice at the main
studio nor any message at the main studio telephone number
indicating the studio was closed or whom to contact.
10. Section 73.1201(b) of the Rules states that,
``[o]fficial station identifications shall consist of the
station's call letters immediately followed by the community
or communities specified in its license as the station's
location...'' On July 18, November 27 and December 4, 2002,
WEXM failed to transmit its official station identification,
identifying only as ``...93.7, the Coast....''
11. Based on the evidence before us, we find
Commonwealth willfully7 and repeatedly8 violated
Sections 73.1125(a) and 73.1201(b) of the Rules by failing
to maintain a presence at the main studio of WEXM during
normal business hours and by failing to transmit an official
12. Pursuant to Section 1.80(b)(4) of the Rules,9 the
base forfeiture amount for violation of main
studio rules is $7,000, and failing to transmit the required
station identification is $1,000. In assessing the monetary
forfeiture amount, we must also take into account the
statutory factors set forth in Section 503(b)(2)(D) of the
Communications Act of 1934, as amended (``Act''), 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.10
Considering the entire record and applying the factors
listed above, this case warrants an $8,000 forfeiture.
IV. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act,11 and Sections
0.111, 0.311 and 1.80 of the Rules,12 Commonwealth is
hereby NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE
in the amount of eight thousand dollars ($8,000) for willful
and repeated violation of Sections 73.1125(a) and 73.1201(b)
of the Rules by failing to maintain a presence at the main
studio of WEXM during normal business hours and by failing
to transmit its official station identification.
14. IT IS FURTHER ORDERED THAT, pursuant to Section
1.80 of the Rules, within thirty days of the release date of
this NAL, Commonwealth SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed
15. 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. and FRN referenced
above. Requests for payment of the full amount of this NAL
under an installment plan should be sent to: Chief, Revenue
and Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.13
16. The response, if any, must be mailed to Federal
Communications Commission, Office of the Secretary, 445 12th
Street SW, Washington DC 20554, Attn: Enforcement Bureau-
Technical & Public Safety Division and MUST INCLUDE THE
NAL/Acct. No. referenced above.
17. 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
18. 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 & 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.
19. IT IS FURTHER ORDERED THAT a copy of this NAL
shall be sent by regular mail and
Certified Mail Return Receipt Requested to Commonwealth
Broadcasting, L.L.C. 500 Dominion Tower, 999 Waterside
Drive, Norfolk, Virginia 23510 and 316 Randolph Ave. Cape
Charles, Virginia 23310.
FEDERAL COMMUNICATIONS COMMISSION
Resident Agent, Norfolk Office,
1 47 C.F.R. §§ 73.1125(a) and 73.1201(b).
2 Main Studio and Program Origination Rules, 2 FCC Rcd 3215,
3217-18 (1987), clarified, 3 FCC Rcd 5024, 5026 (1988).
4 Jones Eastern of the Outer Banks, Inc., 6 FCC Rcd 3615,
3616 (1991), clarified, 7 FCC Rcd 6800 (1992).
5 Id., 6 FCC Rcd at 3616, n.2.
6 Id., 7 FCC Rcd at 6802.
7 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to violations for which forfeitures are assessed
under 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 4387-88
8 The term ``repeated'' means the commission or omission of
an act more than once or, if such commission or omission is
continuous, for more than one day. 47 U.S.C. § 312(f)(2).
9 47 C.F.R. § 1.80(b)(4).
10 47 U.S.C. § 503(b)(2)(D).
11 47 U.S.C. § 503(b).
12 47 C.F.R. §§ 0.111, 0.311, 1.80.
13 See 47 C.F.R. § 1.1914.