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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-00-BS-106
Radio One Licenses, Inc. )
) NAL/Acct. No. 20013226001
Licensee of Station WBOT(FM) )
) FRN 0003-7390-34
Brockton, Massachusetts )
MEMORANDUM OPINION AND ORDER
Adopted: January 28, 2002 Released: January
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order ("Order") we deny
a Petition for Reconsideration filed by Radio One Licenses, Inc.
("Radio One"), licensee of WBOT(FM), of the Forfeiture Order1
issued by the Enforcement Bureau (``Bureau'') assessing a twenty-
one thousand five hundred dollar forfeiture ($21,500) against
Radio One for willful violation of the following Sections of the
Commission's Rules (``Rules''): 11.35(a) (failure to have
operational Emergency Alert System (``EAS'') equipment);
73.1125(e)2 (failure to establish a local or toll-free telephone
number in the community of license); 73.1350(c)(1) (failure to
establish monitoring procedures to determine compliance with
Section 73.1560 regarding operating power); 73.1800(a) (failure
to maintain a station log); and 73.3526(a)(2) (failure to
maintain a public inspection file).3
2. On March 14, 2000, the Commission's Boston,
Massachusetts Field Office (``Boston Office'') conducted an
inspection of radio station WBOT(FM) in Brockton, Massachusetts,
after it received information indicating that WBOT may have been
in violation of the main studio rule. The inspection revealed
ten different rule violations. On March 28, 2000, the District
Director of the Boston Office issued a Notice of Violation
("NOV") for the violations. On March 8, 2001, the District
Director of the Boston Office issued a Notice of Apparent
Liability for Forfeiture ("NAL")4 in the amount of $22,000 for
the aforementioned violations. After being granted an extension
of time to respond to the NAL, Radio One submitted its response
to the Commission on May 1, 2001. In its response, Radio One
acknowledged, with explanation, that all of the violations
occurred except the public file violation, which it disputed.
Nevertheless, Radio One requested that all of the forfeiture
amounts be cancelled and/or reduced. On August 14, 2001, the
Bureau issued a Forfeiture Order in which it upheld the issuance
of the NAL but reduced the forfeiture amount to $21,500 because
of Radio One's voluntary disclosure of its failure to establish a
local or toll-free telephone number in its community of license.
3. On September 13, 2001, Radio One submitted a Petition
for Reconsideration of the Forfeiture Order. In its Petition for
Reconsideration, Radio One disputes that it violated Section
73.3526(a)(2) of the Rules and requests that the Bureau cancel
the portion of the forfeiture assessed it for not having a public
inspection file. Radio One does not dispute that it violated
Sections 11.35(a), 73.1125(e), 73.1350(c)(1), and 73.1800(a).
However, it requests that the portion of the forfeiture assessed
for violation of these rules be cancelled or reduced for other
4. Regarding the public inspection file, Radio One
maintains that the file has always been and remains at WBOT(FM)'s
main studio. Further, Radio One states that, at the time of the
inspection, the file was readily available during normal business
hours to anyone who inquired of Radio One personnel at the main
studio. Radio One sets forth no evidence in support of this
assertion. In explaining why it did not provide evidence of a
public inspection file to the investigating agent, Radio One
asserts that perhaps the investigating agent did not ask for the
public file at the main studio, since the agent initially
perceived there to be no main studio at all. Alternatively,
Radio One contends that maybe the investigating agent did not ask
a Radio One employee for the file because WBOT(FM) shares
facilities with another radio station.
5. As stated in our Forfeiture Order, the investigating
agent asked for the public inspection file twice, first at the
main studio and again at the transmitter site. It is true that
the agent's initial perception was that WBOT(FM) lacked a
meaningful management and staff presence at its studio. However,
in response to the NOV, Radio One represented that Jane Gilson
was the staff person at WBOT(FM)'s main studio and that she
remained in attendance during normal business hours. Ms. Gilson
and others were present at the main studio during the inspection
of WBOT(FM). The agent asked for the public file during that
inspection. The file was never made available to him.
Furthermore, as stated in the Forfeiture Order, the investigating
agent asked WBOT(FM)'s general manager, Mr. Tom Calococci, if
WBOT(FM) had a public inspection file when they met at the
transmitter site. Mr. Calococci responded, "not yet." Radio One
does not dispute that Mr. Calococci told the investigating agent
that WBOT(FM) did not have a public inspection file yet.
Instead, Radio One argues that Mr. Calococci was at the
transmitter site when the agent asked for the file and maintains
that the file would have been provided if the agent had asked for
it at the studio. We think it is irrelevant that Mr. Calococci
was at the transmitter site when the agent asked him for the
file. As the station manager, the person responsible for day-to-
day operation of the station, he should have known whether or not
the station had a public inspection file.5 In any event,
contrary to Radio One's speculative assertions, as noted in the
Forfeiture Order, the agent did ask for the file at the main
studio and it was not made available to him.
6. Radio One also contends that the Bureau has not met its
burden of proof to levy a forfeiture for the public
inspection violation. The Commission has concluded
that the burden of proof in forfeiture proceedings is
that of a preponderance of the evidence. 6 The record
in this proceeding indicates that the agent asked for
the file twice and that it was not made available to
him. Radio One has presented no evidence that it had a
public inspection file at the time of the inspection.
Moreover, Radio One has not presented any evidence
supporting its assertion that the agent did not ask for
the public inspection file. Contrary to Radio One's
assertion, the Bureau has met its burden of proof by a
preponderance of the evidence, and we affirm the
issuance of the forfeiture for violation of Section
73.3526(a)(2) of the Rules.
7. In support of its contention that the Bureau should
cancel or rescind the forfeiture amounts attributable to the
violation of Rule Sections 11.35(a), 73.1125(e), 73.1350(c)(1),
and 73.1800(a), Radio One reasserts the arguments it made in its
response to the NAL and raises four new arguments. To the extent
that Radio One is reiterating arguments made previously, no new
evidence has been presented to persuade the Bureau to change its
positions stated in the Forfeiture Order. However, we will
examine the four new arguments raised. First, Radio One requests
that the Bureau consider that WBOT(FM) was newly acquired at the
time of the inspection. We do not find the fact that Radio One
acquired WBOT(FM) five and one half months prior to the
inspection a mitigating factor. The Commission has repeatedly
held that it is the responsibility of a licensee to familiarize
itself and comply with the applicable statutes and Commission
rules and policies, regardless of the length of time in which it
has been engaged in broadcasting. Bay Television, Inc., 10 FCC
Rcd 11509 (1995) (rejecting licensee's request for lenient
treatment because it had been on the air for barely six months).
Moreover, Radio One is an experienced broadcaster with over 20
years of experience. As an experienced broadcaster, it should be
well aware of its responsibility to comply with the Commission's
rules and policies.
8. Second, Radio One asks us to consider ``other
compelling public interest factors'' in favor of eliminating, or
substantially reducing the forfeiture. However, Radio One does
not specifically identify what public interest factors it wants
us to consider. Furthermore, we fully considered all of the
factors set forth in Section 503(b) of the Communications Act of
1934, as amended, ("Act")7 in determining the appropriate
forfeiture amount in this case.
9. Third, in support of its request for reduction, Radio
One cites to WLDI, Inc.8 and WVGO License Limited Partnership,9
two cases in which forfeitures were reduced because the licensees
exhibited an overall history of compliance with the Commission's
Rules. Here, Radio One does not have a history of overall
compliance with the Commission's Rules. Contrary to Radio One's
assertion that prior NOVs are not relevant to its history of
overall compliance, we have found that prior NOVs are factors in
determining a licensee's overall history of compliance.10
Moreover, the Commission has considered the duration of a
violation in determining whether a licensee has a history of
overall compliance. 11 In this case, there was a prior NOV
issued on November 18, 1999 to Radio One for three violations at
WBOT(FM) a month and a half after it took ownership of the
station. The March 14, 2000 inspection of WBOT(FM) revealed ten
violations and resulted in a second NOV issued approximately four
months after the first on March 28, 2000. Moreover, the EAS
violation identified in the second NOV spanned a period of almost
four months, in spite of the fact that Radio One had the EAS
equipment on hand and uninstalled for at least two months of that
time. In light of the fact that Radio One had two NOVs issued to
it within a four-month period of time and considering the
duration of the EAS violation, we do not find that Radio One has
a history of overall compliance for its operation of this station
and therefore we do not find a reduction of the forfeiture to be
10. Finally, in further support of its request for
reduction, Radio One cites to State University of New York
("SUNY"),12 a case in which the Commission reduced a forfeiture
where the licensee had taken remedial steps to correct
violations, even though the licensee had been the subject of a
prior enforcement action. In SUNY, the Commission reduced a
$23,750 forfeiture to $4,200. The forfeiture had been assessed
because of SUNY's violation of 18 U.S.C. ' 1464, which prohibits
the broadcast of indecent material. The Commission generally
does not nullify or mitigate forfeitures because remedial
measures were taken to correct the violations.13 However,
extenuating circumstances in the SUNY case led the Commission to
conclude that a reduction of the forfeiture amount was warranted.
Once SUNY became aware of the possible broadcast of indecent
material, it took WSUC(FM) off the air pending an investigation,
sent a letter of apology to the complainant, adopted new
operating procedures, and instituted criminal proceedings against
the employee responsible for the questionable broadcasts (for
reasons unrelated to the broadcasts).14 By comparison, there are
no such extenuating circumstances in this case as were present in
the SUNY case.
IV. ORDERING CLAUSES
11. ACCORDINGLY, IT IS ORDERED that, pursuant to Section
405 of the Act,15 and
Section 1.106 of the Rules,16 Radio One's Petition for
Reconsideration of the August 14, 2001, Forfeiture Order IS
DENIED and the Forfeiture Order IS AFFIRMED.
12. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules17 within 30 days of
the release of this Order. If the forfeiture is not paid within
the period specified, the case may be referred to the Department
of Justice for collection pursuant to Section 504(a) of the
Act.18 Payment may be made by mailing a check or similar
instrument, payable to the order of the Federal Communications
Commission, to the Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note the
NAL/Acct. No. 200132260001 and FRN 0003-7390-34. Requests for
full payment under an installment plan should be sent to: Chief,
Revenue and Receivables Operations Group, 445 12th Street, S.W.,
Washington, D.C. 20554.19
13. IT IS FURTHER ORDERED that, a copy of this Order shall
be sent by Certified Mail Return Receipt Requested to counsel for
Radio One Licenses, Inc., Davis Wright Tremaine LLP, Attention:
Pamela C. Cooper, Esq., 1500 K Street, NW, Washington, DC 20005.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 Radio One Licenses, Inc., 16 FCC Rcd 15326 (Enf. Bur.
2 Effective May 20, 2000, Section 73.1125 of the Rules was
amended and the subsections were, consequently, reordered. At
the time the March 28, 2000 NOV was issued, the Rule and
subsection that was violated was 73.1125(d). With the amendment
to and restructuring of Section 73.1125, the subsection that was
violated is now 73.1125(e). For clarity, we will refer to this
violation as a violation of Section 73.1125(e) of the Rules
throughout this document.
3 47 C.F.R. §§ 11.35(a), 73.1125(e), 73.1350(c)(1), 73.1560,
4 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200132260001 (Enf. Bur., Boston Office, released March 8, 2001).
5 In its response to the NOV, Radio One states that the
public inspection file is available at Mr. Calococci's office.
6 See Metromedia, Inc., et. al, 60 FCC 2d 1075 (1976).
7 47 U.S.C. § 503(b).
8 16 FCC Rcd 9571 (Enf. Bur. 2001).
9 12 FCC Rcd 5918 (MMB 1997).
10 See Arnold Broadcasting Company, 16 FCC Rcd 267 (Enf. Bur.
2001), recon. granted in part for other reasons, and denied in
part, 16 FCC Rcd 13600 (2001) and Crown Communication, Inc., 15
FCC Rcd 21937 (Enf. Bur. 2000) (both cases denying reduction of a
forfeiture for history of overall compliance where the licensee
had been issued multiple NOVs).
11 See Commercial Radio Service Corp., 16 FCC Rcd 3543 (Enf.,
Bur., Tech. & Pub. Safety Div. 2001) (denying a reduction for a
history of overall compliance where the licensee had operated
eleven specialized mobile radio stations without authorization
over a five month period of time).
12 State University of New York, 13 FCC Rcd 23810 (1998).
13 See Station KGVL, Inc., 42 FCC 2d 258, 259 (1973).
14 Additionally, notwithstanding a prior enforcement action,
SUNY was determined to have an overall history of compliance.
Based on the facts of this case, we have not found that Radio One
has a history of overall compliance.
15 47 U.S.C. § 405.
16 47 C.F.R. § 1.106.
17 47 C.F.R. § 1.80.
18 47 U.S.C. § 504(a).
19 See 47 C.F.R. § 1.1914.