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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File Number EB-03-OR-296
WFNO, L.L.C. )
Licensee of AM Station WFNO in ) NAL/Acct. No.200432620003
Norco, La. )
Metairie, Louisiana ) FRN 0007 637 523
Adopted: September 7, 2004 Released: September 9,
By the Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we
issue a monetary forfeiture in the amount of
five thousand six hundred dollars ($5,600) to
WFNO, L.L.C. (``WFNO''), licensee of radio
station WFNO (AM), Norco, Louisiana, for willful
and repeated violation of Section 73.1745 of the
Commission's Rules (``Rules'').1 The noted
violations involve WFNO's operation at times, or
with modes or power, other than those specified
and made a part of the license.
2. On February 18, 2004, the Commission's New
Orleans, Louisiana, Field Office (``New Orleans
Office'') issued a Notice of Apparent Liability
for Forfeiture (``NAL'') to WFNO for a
forfeiture in the amount of seven thousand
dollars ($7,000).2 WFNO responded to the NAL on
March 17, 2004.
3. On December 8, 2003, the FCC Enforcement
Bureau's New Orleans Office (``New Orleans
Office'') received information indicating that
AM station WFNO was operating at a high power
level at night causing interference to the
reception of another station. WFNO is
authorized to operate at 5000 watts daytime, 750
watts nighttime, with two directional antenna
4. On December 8, 9, and 10, 2003, and January 5
and 6, 2004, New Orleans Office agents measured
the field strength of WFNO during both daytime
and nighttime hours, and found that the signal
strength was unchanged.
5. On January 8, 2004, the New Orleans Office
agents inspected WFNO. During the inspection,
the station's chief operator confirmed that the
station was not switching to its nighttime power
and directional pattern, but was instead
operating continuously using its daytime pattern
at 50% of its authorized daytime operating
power. The chief operator stated that the
station had operated in this manner since at
least mid-November 2003 because the control
lines that changed antenna mode failed.
6. In its response to the NAL, WFNO admits the
violation but requests reduction of the proposed
monetary forfeiture. WFNO argues that it has a
history of overall compliance, made voluntary
disclosures, made good faith efforts to come
into compliance and was cooperative during and
after the inspection.
7. The proposed forfeiture amount in this case
is being 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, 12 FCC
Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303
(1999) (``Policy Statement''). Section 503(b)
of the Act requires that the Commission, in
examining WFNO's response, 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.5
8. Section 73.1745 of the Rules requires that no
broadcast station operate at times, or with
modes or power, other than those specified and
made a part of the license. WFNO admits that it
violated this rule and knew of the violation.
We conclude that, on December 8, 9 and 10, 2003
and January 5 and 6, 2004, WFNO exceeded
nighttime power limits and operated at night
with daytime directional parameters, in willful6
and repeated7 violation of Section 73.1745 of
9. We find that no reduction is warranted on the
basis of voluntary disclosure or good faith.
While voluntary disclosure of violations8 before
detection by the Commission or correction of
violations before notification by the Commission
does warrant a reduction, neither circumstance
exists here. In this case, WFNO made
disclosures and took steps to correct the
violation only after the Commission notified it
of its violation of Section 73.1745 of the Rules
during the inspection on January 8, 2004. 9
10. WFNO recognizes that remedial efforts are
``not normally considered by the Bureau as a
mitigating factor'' but argues that they should
be considered in this case because of ``unique
circumstances'' including its cooperation and
the promptness of its remedial efforts. We find
no ``unique circumstances'' and conclude that no
mitigation is warranted on the basis of WFNO's
post-notification remedial efforts. As the
Commission stated in Seawest Yacht Brokers, 9
FCC Rcd 6099, 6099 (1994), ``corrective action
taken to come into compliance with Commission
rules or policy is expected, and does not
nullify or mitigate any prior forfeitures or
11. We do find that WFNO has a history of overall
compliance and that the proposed $7,000
forfeiture should be reduced to $5,600 on this
12. We have examined WFNO'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 WFNO
willfully and repeatedly violated Section
73.1745 of the Rules and that reduction of the
proposed $7,000 monetary forfeiture to $5,600 is
13. WFNO has provided no information indicating
that it has achieved compliance with Section
73.1745 of the Rules. Accordingly, we will
require, pursuant to Section 308(b) of the
Act,11 that WFNO L.L.C. report to the
Enforcement Bureau no more than thirty (30) days
following the release of this order how it plans
to achieve compliance with Section 73.1745.
WFNO's report must be submitted in the form of
an affidavit or declaration signed by an officer
IV. ORDERING CLAUSES
14. 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,12 WFNO L.L.C.
IS LIABLE FOR A MONETARY FORFEITURE in the
amount of five thousand six hundred dollars
($5,600) for willfully and repeatedly violating
Section 73.1745 of the Rules.
15. IT IS FURTHER ORDERED that, pursuant to
Section 308(b) of the Act, WFNO must submit the
report described in Paragraph 13, above, no more
than thirty (30) days following the release of
this Order, to the Federal Communications
Commission, Enforcement Bureau, Spectrum
Enforcement Division, 445 12th Street, S.W.,
Room 7-A820, Washington, D.C. 20554, Attention:
Thomas D. Fitz-Gibbon, Esq.
16. 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.13
Payment of the forfeiture must be made by check
or similar instrument, payable to the order of
the Federal Communications Commission. The
payment must include the NAL/Acct. No. and FRN
No. referenced above. Payment by check or money
order may be mailed to Forfeiture Collection
Section, Finance Branch, Federal Communications
Commission, P.O. Box 73482, Chicago, Illinois
60673-7482. Payment by overnight mail may be
sent to Bank One/LB 73482, 525 West Monroe, 8th
Floor Mailroom, Chicago, IL 60661. Payment by
wire transfer may be made to ABA Number
071000013, receiving bank Bank One, and account
number 1165259. Requests for full payment under
an installment plan should be sent to: Chief,
Revenue and Receivables Operations Group, 445
12th Street, S.W., Washington, D.C. 20554.14
17. IT IS FURTHER ORDERED that a copy of this
Forfeiture Order shall be sent by regular mail
and Certified Mail Return Receipt Requested to
WFNO, L.L.C., 110 Veterans Memorial Blvd, Suite
300, Metairie, Louisiana 70005, and its
counsel, Joseph Chautin III, Hardy, Carey &
Chautin, Attorneys at Law, 110 Veterans Memorial
Blvd., Suite 300, Metarire, LA 70005.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
1 47 C.F.R. § 73.1745.
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200432620003 (Enf. Bur. New Orleans Office, released February 18,
3 47 U.S.C. § 503(b).
4 47 C.F.R. § 1.80.
5 47 U.S.C. § 503(b)(2)(D).
6 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.,
7 As provided by 47 U.S.C. § 312(f)(2), a violation that occurs
more than once is ``repeated.'' 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).
8 See, e.g., T-Mobile USA, Inc., 18 FCC Rcd 3501 (2003).
9 In both cases cited by WFNO, Barinowski Investment Company,
L.P., 18 FCC Rcd 25067, 25070 (2003), and Hoffman Communications,
Inc., 18 FCC Rcd 26624 (Enf. Bur. 2003), the violator took steps
to correct the violation before being notified by the Commission.
10 See also Callais Cablevision, Inc., 17 FCC Rcd 22626, 22629
(2002); Radio Station KGVL, Inc., 42 FCC 2d 258, 259 (1973); and
Executive Broadcasting Corp., 3 FCC 2d 699, 700 (1966).
11 47 U.S.C. § 308(b).
12 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
13 47 U.S.C. § 504(a).
14 See 47 C.F.R. § 1.1914.