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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Minority Business and Housing )
Development, Inc., ) File No. EB-02-PA-200
Licensee of FM Station WYGG ) NAL/Acct. No. 200332400003
Asbury Park, New Jersey ) FRN 0007-5125-28
MEMORANDUM OPINION AND ORDER
Adopted: May 18, 2004 Released: May 20,
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order (``Order''),
we deny the petition for reconsideration filed by Minority
Business and Housing Development, Inc. (``MBHD''), licensee
of FM Station WYGG, Asbury Park, New Jersey, of the
Forfeiture Order issued on May 7, 2003.1 The Forfeiture
Order imposed a monetary forfeiture in the amount of
thirteen thousand dollars ($13,000) against MBHD for its
failure to operate its station as authorized and to install
Emergency Alert System (``EAS'') equipment at the station,
in willful and repeated violation of Sections 73.1350(a) and
11.35(a) of the Commission's Rules (``Rules'').2
2. In 2002, the Commission's Philadelphia,
Pennsylvania Field Office (``Field Office'') conducted on-
site inspections of, and investigated a complaint regarding,
Station WYGG's operations. The Field Office's investigation
resulted in the issuance of Notices of Violations on May 30,
2002,3 and July 24, 2002,4 and ultimately the issuance of a
Notice of Apparent Liability for Forfeiture (``NAL'') on
December 30, 2002.5 The NAL found that MBHD had been
transmitting from an antenna - at a location and a height --
not specified by its authorization,6 in apparent willful and
repeated violation of Section 73.1350 of the Rules. The NAL
further found that MBHD had never installed EAS equipment in
apparent willful and repeated violation of Section 11.35(a)
of the Rules. The NAL thus proposed a $13,000 forfeiture
against MBHD (a $5,000 forfeiture for its failure to comply
with the specifications of its authorization, and a $8,000
forfeiture for its failure to comply with the EAS equipment
3. The Enforcement Bureau (``Bureau'') released a
Forfeiture Order on May 7, 2003,7 having had no record of
receiving a response to the NAL. On May 30, 2003, the Bureau
received MBHD's response to the NAL.8 In its response, MBHD
did not dispute the NAL's findings, but nevertheless sought
cancellation or reduction of the forfeiture amount based on
its remedial efforts and its inability to pay.
4. The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Communications Act of
1934, as amended (``Act''),9 Section 1.80 of the Rules,10
and the Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines.11 In assessing forfeitures, Section
503(b)(2)(D) of the Act requires that we 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.12 As
discussed below, having considered MBHD's response in light
of the statutory factors, we do not find that cancellation
or reduction of the forfeiture amount is warranted.
5. MBHD represented that, after receiving the 2002
Notices of Violation, it undertook corrective actions, which
included filing applications for modification13 and for
special temporary authority,14 installing EAS equipment, as
well as maintaining station logs and other requisite
information files. MPHD's undertook its remedial efforts
after the Field Office's investigation, notice and action.
MPHD's subsequent remedial actions, while commendable, did
not mitigate and thus did not present any basis that would
warrant reduction or cancellation of the assessed forfeiture
for each of its violations.15
6. MPHD further represented
that it is a ``small minority owned and operated entity,''
and that it is unable to pay the assessed $13,000
forfeiture. In support, MPHD submitted a December 2002 bank
statement. As the NAL correctly noted, we will consider
adjusting or canceling a forfeiture on the basis of an
inability to pay claim if sufficient financial documentation
is provided (i.e., ``federal tax returns for the most recent
three-year period, financial statements prepared according
to generally accepted accounting practices, or some other
reliable and objective documentation that accurately
reflects the petitioner's current financial status'').16
MPHD's submission of a single bank statement did not suffice
and thus did not present any basis that would warrant
reduction or cancellation of the assessed forfeiture for
each of its violations.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED that, pursuant to
Sections 503(a) and (b) of the Act,17 and Sections 0.111,
0.311 and 1.80(f)(4) of the Rules,18 Minority Business and
Housing Development, Inc., IS LIABLE FOR A MONETARY
FORFEITURE in the amount of thirteen dollars ($13,000) for
its failure to comply with the terms and conditions of its
authorization and its failure to comply with the EAS
requirements, in willful and repeated violation19 of
Sections 73.1350(a) and 11.35(a) of the Rules.20
8. 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.21 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.
200332400003 and FRN 0007-5125-28. 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. 20554.22
9. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by First Class and Certified Mail Return
Receipt Requested to Minority Business and Housing
Development, Inc., 612 Leonard Avenue, Uniondale, New York
11553, and its consultant, James E. Price, Sterling
Communications, Inc., 219 Dodd Road, Ringgold, Georgia
David H. Solomon
Chief, Enforcement Bureau
1 Minority Business and Housing Development, Inc., 18
FCC Rcd 9422 (Enf. Bur.2003). It should be noted that the
Forfeiture Order erred in designating Station WYGG's
community of license as Uniondale, New York (instead of
Asbury Park, New Jersey).
2 47 C.F.R. §§ 73.1350(a) and 11.35(a).
3 Official Notice of Violation, EB-PA-02-200 (Enf.
Bur., Philadelphia, Pennsylvania Field Office, May 30,
4 Official Notice of Violation, EB-PA-02-200 (Enf.
Bur., Philadelphia, Pennsylvania Field Office, July 24,
5 Minority Business and Housing Development, Inc.,
NAL/Acct. No. 200332400003 (Enf. Bur. Philadelphia,
Pennsylvania Field Office, released December 30, 2002).
6 Specifically, the NAL found that the station was
authorized to operate with overall antenna height of 14
meters (45.9 feet) above ground level from 517 Cookman
Avenue, Asbury Park, New Jersey, but that it was operating
with an overall antenna height of 43.9 meters (144 feet)
from 601 Bangs Avenue, Asbury Park, New Jersey.
7 See note 1, supra.
8 See Letter from James E. Price, President, Sterling
Communications, Inc. to Susan Donahue, Chief, Revenue and
Receivables Operations Group, Federal Communications
Commission (received by Enf. Bur. May 30, 2003). Because
MBHD's response was received within thirty (30) days of the
release of the Forfeiture Order, we will consider and treat
the response as a petition for reconsideration of that
Order. See 47 C.F.R. § 1.106(b).
9 47 U.S.C. § 503(b).
10 47 C.F.R. § 1.80.
11 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd
303 (1999) (``Forfeiture Policy Statement'').
12 47 U.S.C. § 503(b)(2)(D).
13 File No. BPED-20020808ADH. (August 8, 2002)
(status: accepted for filing, but not granted).
14 File No. BSTA-20020906ACE (August 9, 2002) (status:
accepted for filing, but not granted).
15 See, e.g., AT&T Wireless Services, Inc., 17 FCC Rcd
21861, 21864-75 (2002); Sonderling Broadcasting Corp., 69
FCC 2d 289, 291 (1978); Odino Joseph, 18 FCC Rcd 16522,
16524 ¶ 8 (Enf. Bur. 2003); South Central Communications
Corp., 18 FCC Rcd 700, 702-03 ¶ 9 (Enf. Bur. 2003);
Northeast Utilities, 17 FCC Rcd 4115, 4117 ¶ 13 (Enf. Bur.
2002); AM Broadcast Station KTNC and C.R. Communications,
Inc., DA 99-2960 ¶ 5 (Enf. Bur. 1999).
16 NAL at ¶ 10.
17 47 U.S.C. §§ 503(a) and (b).
18 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
19 See 47 U.S.C. § 312(f); see also Southern
California Broadcasting Co., 6 FCC Rcd 4387, 4387-88 ¶ 5
20 47 C.F.R §§ 73.1350(a) and 11.35(a).
21 47 U.S.C. § 504(a).
22 See 47 C.F.R. § 1.1914.