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

In the Matter of                )
                                )
Melodynamic Broadcasting Corporation)   File Number EB-02-DT-397 
Radio Station WCER              )   NAL/Acct. No. 200332360003
Canton, Ohio                    )   FRN:  0007-96-0818
                                )

                        FORFEITURE ORDER 

Adopted:  May 17, 2004                  Released:  May 19, 2004 

By the Chief, Enforcement Bureau:

                        I.  INTRODUCTION

    1.    In  this  Forfeiture  Order  (``Order''),  we  issue  a 
monetary forfeiture  in the  amount  of eleven  thousand  dollars 
($11,000)     to     Melodynamic     Broadcasting     Corporation 
(``Melodynamic''), the licensee of   Radio Station WCER,  Canton, 
Ohio for  willful and  repeated  violation of  Sections  1.89(b), 
11.15,  73.51(d),   73.51(e)(2),  73.1225(d)(1),   73.1350(c)(1), 
73.1560(a)(1), 73.1745  and  73.1870(b)(3)  of  the  Commission's 
Rules (``Rules'').1  Respectively,  the noted violations  include 
failure to  respond  to  Commission  communications;  failure  to 
maintain a copy  of the  Emergency Alert  System (EAS)  handbook; 
failure to maintain  a record  of the dates  of commencement  and 
termination  of  power  determination  by  the  indirect  method; 
failure to maintain a record of the efficiency factor F for  each 
mode of operation; failure  to make available  the record of  the 
most recent antenna  impedance measurements;  failure to  monitor 
and establish monitoring  procedures and  schedules to  determine 
compliance with operating  power; failure to  operate with  power 
not in excess of 105% of the authorized power; failure to operate 
at times, or with  modes or power, specified  and made a part  of 
the license; and failure to maintain a written designation of the 
chief operator.  

                        II.   BACKGROUND

    2.    On  April  6-7,  2000,  agents  from  the  Commission's 
Detroit District Office (``Detroit  Office'') monitored and  made 
field strength measurements of WCER based on complaints that WCER 
was operating with power in excess of that authorized.  On  April 
7, 2000, the  agents conducted  an inspection of  WCER and  found 
numerous violations of FCC Rules.  On June 27, 2000, the  Detroit 
Office issued a Notice of Violation (``NOV'') to Melodynamic  for 
eleven rule  violations, and  received a  July 12,  2000  written 
response which did not adequately address all the violations.  On 
August 27, 2000, the Detroit Office issued a Continuation of  NOV 
to Melodynamic requesting additional information regarding  eight 
of the eleven  items in the  NOV, but received  no response.   On 
October  30,  2000,  the  Detroit   Office  sent  a  Warning   to 
Melodynamic for failure  to respond to  the Continuation of  NOV, 
and again received no response.



    3.      Following receipt of more complaints indicating  that 
WCER was  continuing  to operate  with  power in  excess  of  its 
authorization, on  June 20-21,  2002, agents  monitored and  made 
field strength  measurements  of  WCER and,  on  June  21,  2002, 
conducted an inspection of WCER.   As a result, the agents  found 
thirteen violations of FCC Rules.  On July 18, 2002, the  Detroit 
Office issued  an  NOV to  Melodynamic  for these  thirteen  Rule 
violations, but  received  no reply.   On  October 3,  2002,  the 
Detroit Office issued  a Warning  to Melodynamic  for failure  to 
reply to the NOV dated July 18, 2002, but received no reply.  The 
record reveals a  history of  non-compliance, including  repeated 
violations  from  prior  inspections  and  nonresponsiveness   to 
Commission notices and warnings.   Finally, on December 30, 2002, 
the Detroit Office  released a Notice  of Apparent Liability  for 
Forfeiture (``NAL'')  to  Melodynamic  in the  amount  of  eleven 
thousand dollars  ($11,000).2   Melodynamic  filed two  responses 
following the release of the NAL.

    4.     In  neither  response does  Melodynamic  challenge  or 
address the findings of the NAL, that it willfully and repeatedly 
violated  Sections   1.89(b),   11.15,   73.51(d),   73.51(e)(2), 
73.1225(d)(1),   73.1350(c)(1),   73.1560(a)(1),   73.1745    and 
73.1870(b)(3) of  the Rules.  Rather, the  first response,  dated 
January 2, 2003,   discusses the  serious illness of the  station 
manager and generally mentions that he has ``questions as to  the 
amount of the non-compliance fine  and the amount of revenue  the 
stations are currently generating and  expect to generate in  the 
near future.''3  The other letter, received by the Commission  on 
January  24,  2003,  mentions  the  station  manager's   physical 
problems, states that  the station engineer  does not work  there 
full time  and claims  that  the station  is  in the  process  of 
completing  installation  of   another  ground   system  and   is 
addressing interference and transmitter problems.    
        

                        III.   DISCUSSION

    5.    The  proposed  forfeiture  amount  in  this  case   was 
assessed in accordance with Section 503(b) of the  Communications 
Act of 1934, as amended  (``Act''),4 Section 1.80 of the  Rules,5 
and The Commission's Forfeiture Policy Statement and Amendment of 
Section  1.80  of  the   Rules  to  Incorporate  the   Forfeiture 
Guidelines.6 In examining Melodynamic'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 such other matters 
as justice may require.7   



    6.    Based on  the findings  of  the NAL  and  Melodynamic's 
response  thereto,  we  find  that  Melodynamic's  violations  of 
Sections 1.89(b),  11.15, 73.51(d),  73.51(e)(2),  73.1225(d)(1), 
73.1350(c)(1), 73.1560(a)(1),  73.1745 and  73.1870(b)(3) of  the 
Rules were willful8 and repeated.9  We reject any suggestion that 
the licensee is entitled to  mitigation based on general  efforts 
underway at the station  to address the  noted violations. It  is 
well established  that ``corrective  action  taken to  come  into 
compliance with  Commission rules  or policy''  is expected,  and 
does  not   nullify  or   mitigate  any   prior  forfeitures   or 
violations.'' 10 

    7.    Melodynamic was directed in Paragraph 17 of the NAL  to 
submit financial  documentation  to ``specifically  identify  the 
basis''  for  any  requested  reduction  or  cancellation  of   a 
forfeiture on the basis of inability to pay.  The Commission  has 
determined that, in general, a licensee's gross revenues are  the 
best indicator of  ability to  pay a forfeiture11  and would  not 
consider forfeiture cancellation or reduction without  submission 
of three years of tax returns or similar financial data.   To the 
extent that the licensee's January  2, 2003 letter suggests  that 
the payment of forfeiture would impose hardship, Melodynamic  has 
failed to substantiate its request.  There is no evidence  before 
us that  would  support  cancellation  of  the  forfeiture  or  a 
reduction based upon inability to pay. 

    8.    As of the adoption date of this Order, Melodynamic  has 
not provided evidence that it  has complied with Sections  11.15, 
73.51(d),     73.51(e)(2),     73.1225(d)(1),      73.1350(c)(1), 
73.1560(a)(1), 73.1745  and 73.1870(b)(3)  of the  Rules.   Based 
upon  the  licensee's  history  of  non-compliance  and  repeated 
uncorrected violations from prior  inspections, we will  require, 
pursuant to Section 308(b) of the Act ,12 that Melodynamic report 
to the report to the Enforcement Bureau no more than thirty  (30) 
days following the release of this Order whether it has come into 
compliance   with   Sections   11.15,   73.51(d),    73.51(e)(2), 
73.1225(d)(1),   73.1350(c)(1),   73.1560(a)(1),   73.1745    and 
73.1870(b)(3) by maintaining a copy of the Emergency Alert System 
(EAS) handbook; maintaining a record of the dates of commencement 
and termination of  power determination by  the indirect  method; 
maintaining a record of the efficiency factor F for each mode  of 
operation; making available the record of the most recent antenna 
impedance measurements;  monitoring and  establishing  monitoring 
procedures and schedules to  determine compliance with  operating 
power; operating  with  power  not  in  excess  of  105%  of  the 
authorized power; operating  at times,  or with  modes or  power, 
specified and  made a  part  of the  license; and  maintaining  a 
written designation of the chief operator.  Melodynamic's  report 
must be submitted  in the  form of an  affidavit or  declaration, 
under penalty of perjury, signed by an officer or director of the 
licensee.    Melodynamic   should   note   that   its   continued 
noncompliance could result in additional enforcement action. 

                      IV.  ORDERING CLAUSES

    9.    Accordingly, IT IS  ORDERED THAT,  pursuant to  Section 
503(b) of the Act13, and Sections 0.111, 0.311 and 1.80(f)(4)  of 
the Commission's Rules14,  Melodynamic Broadcasting  Corporation, 
IS LIABLE  FOR A  MONETARY  FORFEITURE in  the amount  of  eleven 
thousand dollars ($11,000) for its willful and repeated violation 
of Sections 1.89(b), 11.15, 73.51(d), 73.51(e)(2), 73.1225(d)(1), 
73.1350(c)(1), 73.1560(a)(1),  73.1745 and  73.1870(b)(3) of  the 
Rules.

     10.   Payment of the forfeiture shall be made in the  manner 
provided for in Section 1.80  of the Commission's Rules15  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 credit  card through  the 
Commission's Credit and Debt Management Center at (202)  418-1995 
or 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. 
200332360003,
and FRN:   0007-96-0818  referenced  above.   Requests  for  full 
payment under  an  installment plan  should  be sent  to:  Chief, 
Credit  and  Debt  Management  Center,  445  12th  Street,  S.W., 
Washington, D.C. 20554.17

 
 
     11.    IT  IS  FURTHER  ORDERED that,  pursuant  to  Section 
308(b) of the Act, Melodynamic  must submit the report  described 
in Paragraph 8 above, no more than thirty (30) days following the 
release of this Order, to the Federal Communications  Commission, 
Spectrum Enforcement  Division, 445  12th Street,  S.W., Room  4-
A223, Washington, D.C.  20554, Attention:  Emmitt Carlton, Esq.

          12.   IT  IS  FURTHER  ORDERED  that  a  copy  of  this 
Forfeiture Order shall be sent by Certified Mail, Return  Receipt 
Requested, and  First  Class  Mail  to  Melodynamic  Broadcasting 
Corporation, 4537 22nd Street NW, Canton, Ohio 44708. 

                         FEDERAL COMMUNICATIONS COMMISSION
     

          
                         David H. Solomon
                         Chief, Enforcement Bureau
_________________________

     1 47 C.F.R.  1.89 (b), 11.15, 73.51(d), 73.51(e)(2), 
73.1225(d)(1), 73.1350(c)(1), 73.1560(a)(1), 73.1745 and 
73.1870(b)(3).

     2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 
200332360003 (Enf. Bur., Detroit Office, released December 30, 
2002).

    3   This letter, written by the manager's wife, also 
    apologizes for her husband's unsuccessful attempts to 
    contact the Commission, apparently in response to the 
    October 3, 2002 Warning.   

     4 47 U.S.C.  503(b).

     5 47 C.F.R.  1.80.

     6 12 FCC Rcd  17087 (1997),  recon. denied,  15 FCC Rcd  303 
(1999).  

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

     8 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,' 
... 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).

     9 As  provided  by  47  U.S.C.    312(f)(2),  a  continuous 
violation is ``repeated'' if it continues for more than one  day.   
The  Conference  Report  for  Section  312(f)(2)  indicates  that 
Congress intended to apply this definition to Section 503 of  the 
Act as well as Section 312.  See H.R. Rep. 97th Cong. 2d Sess. 51 
(1982).  See Southern California Broadcasting Company, 6 FCC  Rcd 
4387, 4388 (1991)  and Western Wireless  Corporation, 18 FCC  Rcd 
10319 at fn 56 (2003). 

    10   Seawest Yacht Brokers, 9 FCC Rcd 6099, 6099 (1994).  

     11  See  PJB Communications  of Virginia,  Inc., 7  FCC  Rcd 
2088, 2089 (1992). 

    12    47 U.S.C.  308(b). 

     13 47 U.S.C.  503(b).

     14 47 C.F.R.  0.111, 0.311, 1.80(f)(4).

     15 47 C.F.R.  1.80.

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

     17 See 47 C.F.R.  1.1914.