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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.
) FRN: 0003 7934 60
Adopted: October 13, 2004 Released: October 15,
By the Assistant Chief, Enforcement Bureau:
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.
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
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
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
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
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
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
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,
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.
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
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.