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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-03-NY-364
Jarad Broadcasting Company of Westhampton, Inc. )
WBON-FM, formerly WDRE ) NAL/Acct. No.
Garden City, New York )
) FRN: 0004 9288 34
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: May 20, 2004
By the District Director, New York Office, Northeast Region,
1. In this Notice of Apparent Liability for Forfeiture
(``NAL''), we find that Jarad Broadcasting Company of
Westhampton, Inc. (``Jarad''), the licensee of radio station
WBON-FM, has apparently violated Section 73.1350(a) of the
Commission's Rules (the ``Rules''),1 by operating with an
excessive antenna height. This section requires that a licensee
operate its broadcast station in accordance with the terms of the
station authorization. We conclude that Jarad is apparently
liable for a forfeiture in the amount of five thousand dollars
2. On September 26, 2003, the FCC New York Office received
a complaint, which alleged that Jarad was operating with an
excessive antenna height.
3. On October 15, 2003, Commission agents from the New
York Office inspected Jarad's transmitting facilities, located in
Manorville, New York. The inspection was conducted with Jarad's
president, John Caracciolo, and chief engineer, Ron Reeve.
During the inspection, the agents observed that Jarad's
transmitting antenna was mounted at a height of approximately 114
meters above ground level. The station's license (File No. BLH-
20030115AAA) authorizes Jarad to operate with an antenna height
of 40 meters.
4. On October 29, 2003, the New York Office issued a
Notice of Violation (No. V20043238001) to Jarad for operating
with an antenna height in excess of its authorized height, in
violation of Section 73.1350(a) of the Rules.
5. On November 18, 2003, the New York Office received a
reply to the Notice of Violation, in which Jarad acknowledged the
violation and stated that they raised the antenna height, without
Commission authorization, in response to residents' complaints of
interference to consumer electronic equipment in the vicinity of
the transmitting tower. The response stated that on October 9,
2003, Jarad requested Special Temporary Authority (``STA'') from
the FCC's Audio Division to reduce power and increase antenna
height, in order to eliminate the interference to nearby homes.
The response also stated that on October 29, 2003, the antenna
was returned to its authorized height of 40 meters above ground.
A review of the Commission's records showed no evidence that the
FCC had granted Jarad a STA or any other authorization to operate
with an antenna height other than that stated on the station
6. On December 4, 2003, the New York office obtained
copies of Jarad's Antenna Site Agreement and Tenant Installation
Notice for the tower they rent, showing that they installed the
antenna at a height of 107 meters above ground level on December
7. Jarad's call sign was WDRE for facility ID 57672 at the
time of complaint and the subsequent FCC inspection conducted on
October 15, 2003. A review of the Commission's records showed
that Jarad's call sign was changed from WDRE to WBON-FM on
January 12, 2004.
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 October 15, 2003, agents
observed that Jarad operated with an antenna height of
approximately 114 meters, exceeding its authorized antenna height
of 40 meters, in violation of Section 73.1350(a) of the Rules.
Information obtained subsequent to the inspection shows that they
had operated in violation since antenna installation on December
9. Based on the evidence before us, we find that Jarad
willfully2 and repeatedly3 violated Section 73.1350(a) of the
Rules by operating with an excessive antenna height, thereby
failing to operate its broadcast station in accordance with the
terms of the station authorization.
10. 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''),4
sets the base forfeiture amount for exceeding the authorized
antenna height at $5,000. 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, as
amended,5 (``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. Applying the Forfeiture Policy Statement and the
statutory factors to the instant case and applying the inflation
adjustments, we believe that a five thousand dollar ($5,000)
monetary forfeiture is warranted.
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act6, ,and Sections 0.111, 0.311 and 1.80 of the
Rules7, Jarad is hereby NOTIFIED of its APPARENT LIABILITY FOR A
FORFEITURE in the amount of five thousand dollars ($5,000) for
willful and repeated violation of Section 73.1350(a) of the
12. 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, Jarad SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
13. 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. 200432380012 and FRN: 0004 9288 34.
14. Any response to this NAL must be mailed to Federal
Communications Commission, New York Office, 201 Varick Street,
New York, NY 10014, and MUST INCLUDE THE NAL/Acct. No.
15. 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
16. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Revenue and Receivable Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.8
17. 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, Spectrum Enforcement Division,
445 12th Street, S.W., Washington, D.C. 20554. 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.
18. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail Return Receipt
Requested to Jarad Broadcasting Company of Westhampton, Inc.,
1103 Stewart Avenue, Garden City, NY 11530.
Daniel W. Noel
New York Office
Attachment A - FCC List of Small Entities, October 2002
47 C.F.R. § 73.1350(a).
2 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).
3 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.
447 C.F.R. § 1.80.
47 U.S.C. § 503(b)(2)(D).
47 U.S.C. § 503(b)
747 C.F.R. §§ 0.111, and 0.311.
8 See 47 C.F.R. § 1.1914.