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                           Before the
                Federal Communications Commission
                     Washington, D.C. 20554

In the Matter of                )       File No. EB-02-BF-054    
                                )       File No. EB-02-BF-055
Roser Communications Network, Inc.   )       File  No.  EB-02-BF-
056
WBGK                            )
WBUG                            )       NAL/Acct.             No. 
200232280003
WBUG-FM                         )
Utica, New York                 )       FRN 0003-3986-74         

                        FORFEITURE ORDER 

     Adopted:  June 12, 2003            Released:  June 16, 2003

By the Chief, Enforcement Bureau:

                        I.  INTRODUCTION

1.        In  this  Forfeiture  Order  (``Order''),  we  issue  a 
  monetary  forfeiture in  the  amount of  eight  thousand  eight 
  hundred dollars ($8,800) to Roser Communications Network,  Inc. 
  (``Roser''), for  repeated violations of  Section 11.35(a)  and 
  11.61(a)  of the  Commission's Rules  (``Rules'').1  The  noted 
  violations involve Roser's failure to have a fully  operational 
  Emergency Alert System (``EAS'') installed, its failure to  log 
  the reasons  for the failure  of its EAS  apparatus to  receive 
  test transmissions  and its  failure to  transmit the  required 
  monthly EAS tests.

2.        On July 18, 2002,  the Commission's Buffalo, New  York, 
  Resident Agent Office  (``Buffalo Office'') issued a Notice  of 
  Apparent  Liability for  Forfeiture (``NAL'')  to Roser  for  a 
  forfeiture   in  the   amount   of  eleven   thousand   dollars 
  ($11,000).2  Roser filed its response to the NAL on August  16, 
  2002.

                         II.  BACKGROUND

3.        Roser is the licensee of broadcast stations WBGK,  WBUG 
  and  WBUG-FM (``Roser's  stations'').  On  March 13,  2002,  an 
  agent from the Buffalo  Office traveled to Utica, New York,  to 
  determine   whether   Roser  was   in   compliance   with   the 
  Commission's EAS regulations.   The agent determined that:  (1) 
  from December 4, 2001, to March 12, 2002, WBGK, WBUG and  WBUG-
  FM  did not  receive  monthly or  weekly  tests from  a  second 
  assigned EAS  monitoring source3; (2)  WBGK, WBUG, and  WBUG-FM 
  did  not  transmit  monthly  tests  during  December  2001  and 
  February 2002;  (3) there  were no  EAS log  entries for  WBGK, 
  WBUG,  and  WBUG-FM  indicating  why  those  stations  did  not 
  receive  EAS tests  from  the second  assigned  source  between 
  December  4,  2001,  and  March  12,  2002;  and  (4)  the  EAS 
  equipment at  WBGK, WBUG,  and WBUG-FM  failed consistently  to 
  receive  and  transmit  weekly  and  monthly  EAS  tests   and, 
  therefore, was not fully operational between December 4,  2001, 
  and March 12, 2002.

4.        On March  21, 2002,  the  Buffalo Office  issued  three 
  Official  Notices of  Violation  (``NOVs'') to  Roser  for  the 
  violations detected during the March 13, 2002, inspection.   On 
  April 12, 2002,  Roser submitted responses prepared by  Roser's 
  contractor,  Digital  Radio  Engineering,  Inc.  (``Digital'').  
  The responses acknowledged  the violations alleged by the  NOVs 
  and indicated that they had been corrected.    

5.        On July 18, 2002, the Buffalo Office issued a NAL for a 
  forfeiture in  the amount of $11,000  to Roser for its  willful 
  and repeated  violations of Sections  11.35(a) and 11.61(a)  of 
  the  Rules by  (1)  failing to  have  a fully  operational  EAS 
  installed  ($8,000); (2)   failing  to determine  and  log  the 
  reasons for  the failure of its  EAS apparatus to receive  test 
  transmissions ($1,000 for each of Roser's three stations);  and 
  (3) failing  to transmit the required  monthly EAS tests.4   In 
  its response, filed  August 16, 2002, Roser seeks  cancellation 
  of the  monetary forfeiture.  Roser  states that the  responses 
  to  the  NOVs  ``drafted  and  mailed  by  Roser's  independent 
  contractor engineer  . .  . [do] not  reflect Roser's  official 
  position  on  this   matter''  and  that  Roser  ``denies   the 
  allegations set  forth in the NAL.''   Roser also argues  that, 
  if it  did violate the EAS  rules, it was done  ``unknowingly'' 
  and  ``unintentionally'' and,  therefore, not  willfully.   The 
  period during  which the violations  allegedly occurred,  Roser 
  states, was  one of  transition for it,  a small,  family-owned 
  business,  as  it  was  in  the  midst  of  selling   stations, 
  purchasing and  building out a  station, relocating  equipment, 
  and  bringing  on  new staff.   Its  record  before  us,  Roser 
  asserts,  is  ``spotless.''  Finally,  Roser  argues  that  the 
  imposition of an  $11,000 monetary forfeiture would  ``severely 
  damage''  it   and  that  it  would   be  forced  to   consider 
  terminating one or more of its employees.

                      III.      DISCUSSION

6.        The forfeiture  amount in  this  case was  assessed  in 
  accordance with  Section 503(b)  of the  Communications Act  of 
  1934, as  amended (``Act''),5 Section 1.80  of the Rules,6  and 
  The Commission's Forfeiture  Policy Statement and Amendment  of 
  Section  1.80  of  the  Rules  to  Incorporate  the  Forfeiture 
  Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC  Rcd 
  303  (1999)  (``Policy  Statement'').   In  examining   Roser's 
  response,  Section  503(b)   of  the  Act  requires  that   the 
  Commission take into account 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.7

7.        Section 11.35(a) of the  Rules requires that  broadcast 
  stations have  fully operational EAS  equipment.  That  section 
  also requires  that broadcast  stations determine  and log  the 
  reasons                         for                         any                                           
  failure of their  EAS apparatus to receive test  transmissions.  
  Section 11.61(a) requires monthly and weekly EAS tests.   Roser 
  submitted responses  (prepared by its  contractor) to the  NOVs 
  acknowledging violations  of these requirements and  indicating 
  that Roser  had corrected those  violations.  Now, in  response 
  to the  NAL, Roser  repudiates its  responses to  the NOVs  and 
  denies  the alleged  violations but  does  not submit  a  sworn 
  statement or provide any factual basis for the denial.  In  the 
  absence of  any factual basis for  Roser's denial, we  conclude 
  on  the basis  of the  FCC agent's  investigation that  between 
  December  4, 2001  and March  12, 2002,  Roser did  not have  a 
  fully operational EAS  installed and did not determine and  log 
  the reasons  for the failure  of its EAS  apparatus to  receive 
  test transmissions, and during December 2001 and February  2002 
  Roser did  not transmit  the required monthly  EAS tests.   We, 
  therefore,  conclude that  Roser repeatedly  violated  Sections 
  11.35(a) and 11.61(a) of the Rules.8

8.        Section  503(b)  of  the   Act  gives  the   Commission 
  authority to assess a forfeiture penalty against any person  if 
  the Commission  determines that the  person has ``willfully  or 
  repeatedly'' failed  to comply with the  provisions of the  Act 
  or  with   any  rule,  regulation  or   order  issued  by   the 
  Commission.9   Roser  claims  that  the  violations,  if   any, 
  occurred  during  a  period  of  transition  for  it  and  were 
  unknowing and unintentional,  and, therefore, not willful.   In 
  light  of  our  determination  that  Roser's  violations   were 
  repeated, it  is not necessary to  determine whether they  were 
  also  willful.10   We  remind  Roser  that,  as  a   Commission 
  licensee,  it is  obligated to  maintain its  stations in  full 
  compliance with the Act  and the Rules during all periods,  and 
  will  not be  excused for  violations absent  clear  mitigating 
  circumstances.11

9.        Roser claims that  payment of  the proposed  forfeiture 
  amount of $11,000  would pose a severe financial hardship.   As 
  explicitly  stated in  the NAL  at paragraph  13, we  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.   We  cannot  consider 
  Roser's inability  to pay claim because  Roser did not  provide 
  any of the required financial documentation.

10.       The NAL found at paragraph  8 that Roser has a  history 
  of overall  compliance, a ``downward'' adjustment  criterion,12 
  and   that  its   violations  are   egregious,  an   ``upward'' 
  adjustment criterion,13 and  made no adjustment to the  $11,000 
  base forfeiture  amount.14  Based on our  review of the  facts, 
  we do  not find  in this instance  that an  egregiousness-based 
  upward  adjustment  is  warranted.   Therefore,  we  find  that 
  Roser's history of  overall compliance warrants mitigating  its 
  forfeiture to $8,800.

11.       We have examined Roser's  response to the NAL  pursuant 
  to the  statutory factors  above, and in  conjunction with  the 
  Policy  Statement as  well.   As a  result  of our  review,  we 
  conclude that Roser  repeatedly violated Sections 11.35(a)  and 
  11.61(a) of  the Rules and find that,  while there is no  basis 
  for  cancellation  of  the  proposed  monetary  forfeiture,   a 
  reduction to $8,800 is warranted.

                        IV.  ORDERING CLAUSES

12.       Accordingly, IT IS  ORDERED that,  pursuant to  Section 
  503(b) of the Act, and Sections 0.111, 0.311 and 1.80(f)(4)  of 
  the Rules,15 Roser IS  LIABLE FOR A MONETARY FORFEITURE in  the 
  amount of  eight thousand  dollars eight  hundred ($8,800)  for 
  failing to have  a fully operational EAS installed, failing  to 
  determine  and log  the  reasons for  the  failure of  its  EAS 
  apparatus  to  receive  test  transmissions,  and  failing   to 
  transmit the required monthly EAS tests, in repeated  violation 
  of Sections 11.35(a) and 11.61(a) of the Rules.

13.       Payment of the forfeiture shall  be made in the  manner 
  provided for  in Section 1.80  of the Rules  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.16  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 reference  NAL/Acct. No.  200232280003 and  FRN 
  0003-3986-74.  Requests for  full payment under an  installment 
  plan should be  sent to: Chief, Revenue and Receivables  Group, 
  445 12th Street, S.W., Washington, D.C. 20554.17











14.       IT IS FURTHER ORDERED that  copies of this Order  shall 
  be  sent by  Certified Mail  Return  Receipt Requested  and  by 
  First Class  Mail to Roser  Communications Network, Inc.,  P.O. 
  Box 4490, Utica, New  York, 13504, and to its counsel,  Richard 
  J.  Hayes,  Jr.,  Esq.,  8404  Lee's  Ridge  Road,   Warrenton, 
  Virginia 20186.



                         FEDERAL COMMUNICATIONS COMMISSION

                         


                         David H. Solomon
                         Chief, Enforcement Bureau
_________________________

  1 47 C.F.R.  11.35(a), 11.61(a).

  2 Notice  of Apparent Liability  for Forfeiture, NAL/Acct.  No. 
200232280003 (Enf. Bur., Buffalo Office, rel. July 18, 2002).    

  3 The NAL indicated that the agent determined WBUG and  WBUG-FM 
did not receive  monthly tests from  any assigned EAS  monitoring 
source from December 4,  2001, to March 12,  2002.  In fact,  the 
agent determined that  WBUG and WBUG-FM  received tests from  the 
first assigned source but not from the second assigned source.

  4 The  NAL did  not specify  a separate  forfeiture amount  for 
failure to  transmit the  required monthly  EAS tests.   However, 
this violation  was considered  as an  additional basis  for  the 
$11,000  forfeiture  amount  calculated  for  the  violations  of 
Section 11.35(a) of the Rules.  

  5 47 U.S.C.  503(b).

  6 47 C.F.R.  1.80.

  7 47 U.S.C.  503(b)(2)(D).

  8 Section 312(f)(2) of the Act, 47 U.S.C.  312(f)(2),  defines 
``repeated'' when  used  with  reference  to  the  commission  or 
omission of any act as ``the  commission or omission of such  act 
more than once or, if such commission or omission is  continuous, 
for more than one day.''

  9 47 U.S.C.  503(b)(1)(B). 

  10 Koke, Inc., 23 FCC 2d 191 (1970).

  11 Sitka  Broadcasting Co., 70 FCC  2d 2375, 2378 (1979);  East 
Tennessee Radio Group, L.P., DA 03-868 (Enf. Bur., rel. Mar.  26, 
2003).

  12  See  47  C.F.R.    1.80(b)(4),  Guidelines  For  Assessing 
Forfeitures, Section II.

  13 Id.

  14  Paragraph 8  of the  NAL also  indicates that  the  Buffalo 
Office applied ``inflation adjustments''  in calculating the  NAL 
amount.  This appears to be a misstatement as no such adjustments 
are authorized by the Rules or the Act.  Our review of this  case 
indicates  that  the  Buffalo   Office  actually  made  no   such 
adjustments to the base forfeiture amounts.

  15 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

  16 47 U.S.C.  504(a).

  17 See 47 C.F.R.  1.1914.