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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Great Northern Radio, L.L.C. ) File Number: EB-02-BS-301
Licensee of FM Station WVAY ) NAL/Acct. No. 200332260004
Wilmington, Vermont )
Facility ID # 57728 ) FRN 0003-7598-42
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: May 19,
By the District Director, Boston Office, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Great Northern Radio, L.L.C. ("Great
Northern"), licensee of FM radio station WVAY in Wilmington,
Vermont, has apparently violated Section 73.1125(a) of the
Commission's Rules ("Rules").1 Specifically, we find Great
Northern apparently liable for failing to maintain the requisite
main studio presence. We conclude that Great Northern is
apparently liable for a forfeiture in the amount of seven
thousand dollars ($7,000).
2. On November 20, 2002, an agent from the Commission's
Boston Office attempted an inspection at the WVAY main studio
location at 127 Route 100 in West Dover, Vermont. There was no
one present at the studio location, nor was there any evidence
that anyone was there on a daily basis. On November 21, 2002,
the agent went to the Rutland, Vermont studio of WEXP. WEXP and
WVAY simulcast programming. Station personnel there stated that
no one had been stationed at the West Dover studio for the past
several months. That day the agent returned to Dover,
accompanied by WEXP personnel, to complete the inspection of the
unmanned WVAY station.
3. On December 10, 2002, the Boston Office sent an
Official Notice of Violation (``NOV'') to Great Northern for
violations found during the November 20 and 21, 2002 inspection.
The NOV issued to Great Northern included the non-compliance with
Section 73.1125 of the Rules. On January 13, 2003, the Boston
Office received a response to the NOV from Great Northern. In
its response, Great Northern acknowledged the failure to comply
with the main studio staffing requirement and detailed corrective
action that they were taking.
4. Section 503(b) of the Communications Act of 1934, as
amended, ("Act"), provides that any person who willfully or
repeatedly fails to comply substantially with the terms and
conditions of any license, or willfully or repeatedly fails to
comply with any of the provisions of the Act or of any rule,
regulation or order issued by the Commission thereunder, shall be
liable for a forfeiture penalty.2 The term "willful" as used in
Section 503(b) has been interpreted to mean simply that the acts
or omissions are committed knowingly.3 The term "repeated" means
that the violation occurred on more than one day.4
5. Section 73.1125(a) of the Rules generally requires
broadcast stations to maintain a main studio at one of the
following locations: (i) within the station's community of
license; (ii) at any location within the principal community
contour of any AM, FM, TV broadcast station licensed to the
station's community of license; or (iii) within twenty-five miles
from the reference coordinates of the center of its community of
license. The station's main studio must serve the needs and
interests of the residents of the station's community of license.
To fulfill this function, a station must, among other things,
maintain a meaningful management and staff presence at its main
studio.5 The Commission has defined a minimally acceptable
"meaningful presence" as full-time managerial and full-time staff
personnel.6 In addition, there must be "management and staff
presence" on a full-time basis during normal business hours to be
considered "meaningful." Although management personnel need not
be "chained to their desks" during normal business hours, they
must "report to work at the main studio on a daily basis, spend a
substantial amount of time there and ... use the studio as a
'home base.'"7 On November 20 and 21, 2002, Great Northern had
no management or staff presence during normal business hours at
the main studio of station WVAY in violation of Section
73.1125(a) of the Rules.
6. Based on the evidence before us, we find that Great
Northern Radio L.L.C. failed to maintain the required management
and staff presence at the main studio of WVAY during normal
business hours on November 20 and 21, 2002 in willful and
repeated violation of Section 73.1125(a) of the Rules.
7. 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''),8
sets the base forfeiture amount at $7,000 for violation of the
main studio rule.9 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 Act which include the nature,
circumstance, extent and gravity of the violation(s), and with
respect to the violator, the degree of culpability, and history
of prior offenses, ability to pay, and other such matters as
justice may require.10 Applying the Forfeiture Policy Statement
and the statutory factors to the instant case, we believe that a
seven thousand dollar ($7,000) monetary forfeiture is warranted.
8. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act and Sections 0.111, 0.311 and 1.80 of the
Rules11, Great Northern Radio, L.L.C., is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of seven
thousand dollars ($7,000) for willfully and repeatedly violating
Sections 73.1125(a) of the Rules at station WVAY.
9. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Commission's Rules, within thirty days of the release date of
this NAL, Great Northern Radio, L.L.C., SHALL PAY the full amount
of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
10. Payment 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 must include the NAL/Acct. No.
200332260004 and the FCC Registration Number 0003-7598-42.
11. The response, if any, must be mailed to the Office of
the Secretary, Federal Communications Commission, 445 12th
Street, S.W., Washington, D.C. 20554, ATTN: Enforcement Bureau -
Technical and Public Safety Division and must include NAL/Acct.
12. 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
13. 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,
14. 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 Federal Communications
Commission, Enforcement Bureau, 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.
15. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by certified mail return receipt
requested, to Great Northern Radio, L.L.C., 70 Walnut Street,
#411, Wellesley Massachusetts 02481. A copy is to be sent to
David O'Neil, Manatt, Phelps and Phillips, LLP, 1501 M Street,
Suite 700, Washington, District of Columbia 20005-1702.
FEDERAL COMMUNICATIONS COMMISSION
Vincent F. Kajunski
Enclosure: Attachment A, Condensed list of Small Entities
1 47 C.F.R. § 73.1125(a).
2 47 U.S.C. § 503(b).
3 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 or any rule or regulation of the Commission authorized
by 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 See Main Studio and Program Origination Rules, 3 FCC Rcd. 5024,
6 Jones Eastern of the Outer Banks, Inc., 6 FCC Rcd. 3615, 3616
and n.2 (1992), clarified, 7 FCC Rcd. 6800 (1992).
7 Jones Eastern of the Outer Banks, Inc., 7 FCC Rcd. 6800, 6802
8 47 C.F.R. § 1.80.
9 See, e.g., American Broadcasting Educational Foundation, 15 FCC
Rcd. 8630, 8630 (Enf. Bur. 2000) (imposing a $7,000 forfeiture
for violation of the main studio rules).
10 47 U.S.C. § 503(b)(2)(D).
11 47 C.F.R. §§ 0.111, and 0.311.
12 See 47 C.F.R. § 1.1914.