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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-
WBUG ) NAL/Acct. No.
Utica, New York ) FRN 0003-3986-74
Adopted: June 12, 2003 Released: June 16, 2003
By the Chief, Enforcement Bureau:
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,
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.
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
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
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,
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,
12 See 47 C.F.R. § 1.80(b)(4), Guidelines For Assessing
Forfeitures, Section II.
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.