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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Broadcast Learning Center, Inc. ) File Number EB-02-PA-
WHS405 ) NAL/Acct. No.
Cherry Hill, New Jersey ) FRN: 0007-83-6190
Adopted: May 21, 2004 Released: May
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of three thousand two
hundred dollars ($3,200) to Broadcast Learning Center, Inc.
(``BLCI'') for apparent willful and repeated violation of
Section 74.532(e) of the Commission's Rules (``Rules'')1 by
operating station WHS405 at an unauthorized location.
2. On January 6, 2003, the Commission's Philadelphia,
Pennsylvania Office (``Philadelphia Office'') issued a
Notice of Apparent Liability (``NAL'') to BLCI in the amount
of four thousand dollars ($4,000).2 BLCI filed a response
on February 4, 2003 and supplemented its response on May 11,
3. The license for station WHS405 authorizes BLCI to
operate an aural broadcast auxiliary station on the
frequencies 948.375 MHz and 948.625 MHz near the
intersection of 11th Street and Moss Avenue, Hammonton, New
Jersey. However, on October 15, 2002, an FCC agent with the
Philadelphia Office inspected the station and found that
BLCI was operating the station at an unauthorized location.
Specifically, BLCI was operating the station at 308 Dutton
Mill Road, Brookhaven, Pennsylvania, which is over 30 miles
from the site authorized in the license.
4. On October 21, 2002, the Philadelphia Office
issued a Notice of Violation (``NOV'') to BLCI for operating
station WHS405 at an unauthorized location, in violation of
Section 74.532(e) of the Rules. By letter dated October 30,
2002, BLCI submitted a response to the NOV. In the
response, BLCI acknowledged to have operated station WHS405
at the unauthorized location since at least March 17, 1998.
BLCI stated that although it had filed an application with
the Commission to relocate the station to 308 Dutton Mill
Road, Brookhaven, Pennsylvania, it was unaware that the
Commission returned the application on September 27, 1998.
BLCI stated that on October 24, 2002, it filed another
license modification application and an application for
Special Temporary Authority. On January 6, 2003, the
Philadelphia Office issued a NAL for willful and repeated
violation of Section 74.532(e) of the Commission's Rules.
5. In its response to the NAL, BLCI acknowledges that
it violated Section 74.532(e) but denies that its conduct
was ``willful, deliberate or intentional.'' It argues that
the public was not harmed and that it promptly corrected the
violation. BLCI also claims that it is financially unable
to pay the forfeiture and that it has a history of
compliance with Commission rules and regulations.
6. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the
Communications Act of 1934, as amended (``Act''),3 Section
1.80 of the Rules,4 and The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines.5 In examining BLCI'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
7. Section 74.532(e) of the Rules provides that each
aural broadcast auxiliary station will be licensed at a
specified transmitter location to communicate with a
specified receiving location, and the direction of the main
radiation lobe of the transmitting antenna will be a term of
the station authorization. Based on the agent's inspection
and BLCI's responses, it is undisputed that between March
17, 1998 and October 15, 2002, BLCI operated aural broadcast
auxiliary station WHS405 at an unauthorized location.
8. BLCI concedes that it was operating station WHS405
from an unauthorized location, but argues that its
misconduct was not ``willful, deliberate or intentional''
even though it also admits that its staff failed to study
the primary station license ``in detail to detect that the
transmitter address was incorrect'' and to learn that its
application to relocate the station to the proper address
was returned. These arguments are rejected because we find
BLCI's failure to ascertain that it was not operating at its
authorized location to be willful misconduct.7 Similarly,
BLCI's argument that ``no other station was harmed or
interfered with'' by its unintentional action and that the
``public's safety was never put in risk or jeopardy'' are
also rejected. The absence of interference or any showing
of harm to the public interest does not entitle BLCI to a
reduction of the proposed forfeiture.8
9. BLCI points out that it has taken a number of
corrective steps to cure the Rule violation. According to
the company, after the violation was brought to its
attention by the Commission, it immediately filed
applications for license modification and Special Temporary
Authority. BLCI states that these applications have been
approved by the Commission, and that BLCI is now in
``complete compliance.'' BLCI claims that it ``spent more
than $3,000 in attorney and engineering fees to correct the
violation and bring our station into FCC compliance.''
BLCI's remedial repair actions subsequent to notification of
the violation do not warrant cancellation or reduction of
the proposed forfeiture.9 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
10. BLCI submits federal income tax returns for years
2000, 2001, and 2002 to demonstrate that payment of the
monetary forfeiture will constitute a ``financial burden on
the station's operation''.11 In further support of its
inability to pay showing, BLCI also states that it is a
``non commercial educational station with a good portion of
our revenue coming from individual donations,'' lists other
important financial obligations that it faces and discusses
why it needs to set aside a cash reserve. However, the
Commission has determined that, in general, a licensee's
gross revenues are the best indicator of its ability to pay
a forfeiture.12 After reviewing the financial data
submitted, we find insufficient evidence in BLCI's response
to support cancellation of the forfeiture or a reduction
based upon inability to pay.
11. Finally, in support of its request for
cancellation or reduction, BLCI states that it has a history
of full compliance with FCC regulations. We have reviewed
Commission records and concur.
12. Based on the findings of the NAL and BLCI's
response thereto, we conclude that BLCI's violations of
Section 74.532(e) of the Rules were willful and repeated.13
Considering the entire record and the factors listed above,
we find that reduction of the proposed forfeiture is
warranted because of the compliance record of BLCI with the
Commission's Rules. Accordingly, the forfeiture amount is
reduced from four thousand dollars ($4,000) to three
thousand two hundred dollars ($3,200).
IV. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED THAT, pursuant to
Section 503(b) of the Act14, and sections 0.111, 0.311 and
1.80(f)(4) of the Commission's Rules15, Broadcast Learning
Center's Inc. IS LIABLE FOR A MONETARY FORFEITURE in the
amount of three thousand, two hundred dollars ($3,200) for
its willful and repeated violation of Section 74.532(c) of
14. Payment of the forfeiture shall be made in the
manner provided for in Section 1.80 of the Commission's
Rules16 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.17 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. 200332400004, and
FRN: 0007-83-6190 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. 20554.18
15. 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 Broadcast
Learning Center, Inc., 1445 Skippack Pike, Blue Bell,
Pennsylvania 19422 and to its counsel, Edward W. Hummers,
Jr., Holland & Knight LLP, 2099 Pennsylvania Avenue, N.W.,
Suite 100, Washington, D.C. 20006-6801.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. § 74.532(c).
2 Notice of Apparent Liability for Forfeiture,
NAL/Acct. No. 200332400004 (Enf. Bur., Philadelphia Office,
released January 6, 2003).
3 47 U.S.C. § 503(b).
4 47 C.F.R. § 1.80.
5 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd
6 47 U.S.C. § 503(b)(2)(D)
7 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
8 See In re AGM-Nevada, LLC, 18 FCC Rcd 1476 (Enf. Bur.
9 See Radio Station KGVL, Inc., 42 FCC 2d 258, 259
10 Seawest Yacht Brokers, 9 FCC Rcd 6099, 6099
11 See PJB Communications of Virginia, Inc., 7 FCC Rcd
2088 (1992) (forfeiture not deemed excessive where it
represented approximately 2.02 percent of the violator's
gross revenues); Hoosier Broadcasting Corporation, 15 FCC
Rcd 8640, 8641 (Enf. Bur. 2002) (forfeiture not deemed
excessive where it represented approximately 7.6 percent of
the violator's gross revenues); Afton Communications Corp.,
7 FCC Rcd 6741 (Com. Car. Bur. 1992) (forfeiture not deemed
excessive where it represented approximately 3.9 percent of
the violator's gross revenues).
12 See PJB Communications of Virginia, Inc. at 2088,
13 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, id. at 4387, 4388 (1991) and Western
Wireless Corporation, 18 FCC Rcd 10319 at fn 56 (2003).
14 47 U.S.C. § 503(b).
15 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
16 47 C.F.R. § 1.80.
17 47 U.S.C. § 504(a).
18 See 47 C.F.R. § 1.1914.