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

In the Matter of                )
                                )       
Capital Media Corporation       )  
WHAZ                            )       File No. EB-03-NY-082
WBAR-FM                         )       File No. EB-03-NY-083
WMYY                            )       File No. EB-03-NY-084
WMNV                            )       File No. EB-03-NY-085
Cohoes, NY                      )
                               )        NAL/Acct.             No. 
200432380008
                                )       FRN: 0003 7934 60
                                        
                                
                        FORFEITURE ORDER

Adopted:  October 13, 2004              Released:   October   15, 
2004 

By the Assistant  Chief, Enforcement Bureau:


I.   INTRODUCTION

     1.   In  this  Forfeiture  Order  (``Order''),  we  issue  a 
monetary forfeiture  in  the  amount  of  four  thousand  dollars 
($4,000)  to  Capital  Media  Corporation  (``Capital   Media''), 
licensee of  radio stations  WHAZ, WBAR-FM,  WMYY and  WMNV,  for 
willful and repeated violation of Sections 11.35(a) and  11.61(b) 
of the  Commission's  Rules  ("Rules")1 by  failing  to  maintain 
station records of  required monthly and  weekly Emergency  Alert 
System (``EAS'') test messages.

     2.   On March  1,  2004,  the Commission's  New  York  Field 
Office (``New York Office") issued a Notice of Apparent Liability 
for  Forfeiture  ("NAL"),  to   Capital  Media  for  a   proposed 
forfeiture in  the amount  of  four thousand  dollars  ($4,000).2  
Capital Media filed a response to the NAL on March 29, 2004. 

II.  BACKGROUND

     3.   On June 5,  2003, an  agent from  the Commission's  New 
          York Office conducted  an EAS  inspection of  stations: 
          WHAZ, Troy, New York; WBAR-FM, Lake Luzerne, New  York; 
          WMYY, Schoharie, New York;        and   WMNV,   Rupert, 
          Vermont.  The four stations are owned by Capital Media, 
          are co-located at  Cohoes, New York,  and use the  same 
          EAS system.  The agent did not find station records for 
          EAS testing for  the months of  December 2002,  January 
          2003, March 2003 and April  2003, the test for  January 
          5-11, 2003, or  find reasons given  why EAS tests  were 
          not received.
   
     4.   On March 1, 2004,  the New York  Office issued the  NAL 
          for violation of Sections 11.35(a) and 11.61(b) of  the 
          Rules, and fined Capital Media  $1,000 for each of  the 
          four stations  ($4,000).  On  March 29,  2004,  Capital 
          Media  submitted  a  response  to  the  NAL.   In  that 
          response, Capital Media  admits that  its EAS  receiver 
          did not receive  the tests in  question, but urges  the 
          Commission to rescind or reduce the forfeiture amount.3 

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  (``Forfeiture  Policy  Statement'').6    In 
          examining Capital Media'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.   Section  11.61(b)  of  the  Rules  requires   broadcast 
          stations to make entries in station records of  monthly 
          and weekly  EAS tests  received, and  Section  11.35(a) 
          requires broadcast stations to make entries in  station 
          records of any  failure to receive  monthly and  weekly 
          EAS tests, and to give reasons why the entries were not 
          made.

     7.   Capital Media does not dispute that it did not  receive 
          the EAS tests or that it failed to make contemporaneous 
          entries at the time as to why it failed to receive  the 
          tests.  Nevertheless, Capital Media  seeks a rescission 
          or reduction of  the proposed  forfeiture. In  support, 
          Capital Media claims that it kept very careful  records 
          of its EAS  tests received,  as evidenced  by EAS  test 
          records it has  before and  after the  missing ones  in 
          2003.  It also states it does not know definitively why 
          it did  not receive  the tests  that are  missing.   In 
          documentation  submitted  with  its  response,  Capital 
          Media notes that power outages and inclement conditions 
          may have caused its EAS receiver to not be working.  It 
          also states that it has corrected communications within 
          its EAS  system,  and  continues  to  improve  its  EAS 
          recordkeeping

     8.   The reasons Capital Media gives for having neither  the 
          test records nor the explanation for their absence  are 
          not  exculpatory.   Capital  Media,  as  a   Commission 
          licensee, 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 circumstances.8   In the instant case, 
          Capital Media does not have entries with respect to EAS 
          tests received nor  any contemporaneous explanation  as 
          to why there  were no  entries made.   Since it  cannot 
          satisfactorily explain  why it  could not  receive  the 
          tests,  Capital  Media  also  cannot  comply  with  the 
          requirement to give  reasons why the  entries were  not 
          made. By failing to make the appropriate entries at the 
          relevant time, Capital Media violated Sections 11.61(a) 
          and 11.35 of the Commission's Rules. The three exhibits 
          Capital Media  includes with  its response  to the  NAL 
          which appear to attribute  non-compliance, in part,  to 
          weather difficulties, were made in 2004 and are nothing 
          more than post hoc rationalization of the violations.  

     9.   Based on the  findings of the  NAL and Capital  Media's 
          response  thereto,   we  find   that  Capital   Media's 
          violation  of  Sections   11.35(a)  and  11.61(b)   was 
          willful9 and repeated.10  While the licensee has  taken 
          corrective  actions  to   prevent  recurrence  of   the 
          violations, such  actions  are not  mitigating  factors 
          warranting a  forfeiture  reduction.11   Therefore,  we 
          deny Capital Media's request  to reduce or rescind  the 
          NAL.

 
IV.  ORDERING CLAUSES

     10.  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 Capital Media,  IS LIABLE FOR  A MONETARY FORFEITURE  in 
the amount of  four thousand dollars  ($4,000) for willfully  and 
repeatedly violating Sections 11.35(a) and 11.61(b) of the Rules. 

     11.  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 shall 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 must include the  FCC 
Registration Number (FRN) and the NAL/Acct. No. referenced in the 
caption.  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  Group,  445 12th  Street,  S.W., 
Washington, D.C. 20554.14

          12.  IT IS FURTHER ORDERED that,  a copy of this  Order 
shall be sent by Certified  Mail Return Receipt Requested and  by 
First Class Mail to  Mr. Paul F.  Lotters, President and  General 
Manager, Capital Media Corporation,  30 Park Avenue, Cohoes,  New 
York, 12047-3330.

                              FEDERAL COMMUNICATIONS COMMISSION

                         

                              George R. Dillon
                              Assistant Chief, Enforcement Bureau


           



_________________________

1 47 C.F.R.  11.35 and 47 C.F.R.  11.61(b).

2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 
200432380008 (Enf. Bur., New York Office, released March 1, 
2004).

3  To the extent that Capital Media also alleges that during  the 
inspection, the Commission  agent assured Capital  Media that  he 
would not  impose  a sanction,  the  dispositive facts  are  that 
Capital Media  violated Sections  11.35(a)  and 11.61(b)  of  the 
Rules, and thus a sanction is appropriate. 

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 See Roser Communications Network, Inc., 18 FCC Rcd 11766  (Enf. 
Bur. 2003).

9  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).   

10 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, supra, at 
4388 and Western Wireless Corporation, 18 FCC Rcd 10319 at fn. 56 
(2003).

11 See, e.g.,  AT&T Wireless  Services, Inc., 17  FCC Rcd  21866, 
21871 (2002);  Seawest  Yacht Brokers,  9  FCC Rcd  6099  (1994); 
Station KGVL, Inc., 42 FCC 2d 258, 259 (1973).

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.