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                Federal Communications Commission
                     Washington, D.C. 20554

In the matter of                 )
                                )
SAGA COMMUNICATIONS OF NEW       )    File No. EB-01-IH-0230
ENGLAND, INC.                    )    NAL/Acct. No. 
                                )    20043208000014
Licensee of Station WLZX(FM),    )
Northampton, Massachusetts       )    Facility ID No. 46963 
                                     FRN No. 0002749406
                        FORFEITURE ORDER

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

By the Chief, Enforcement Bureau:

I. INTRODUCTION

     1.   In this Forfeiture Order, we impose a forfeiture of 
$4,000 against Saga Communications of New England, Inc. 
(``Saga''), licensee of Station WLZX(FM), Northampton, 
Massachusetts, for violating section 73.1206 of the Commission's 
rules1 by broadcasting a telephone conversation without first 
informing the other party to the conversation of its intention to 
do so.  

II. BACKGROUND

     2.   On February 19, 2004, we issued a Notice of Apparent 
Liability (``NAL'') 2 for $4,000, based on a complaint by Western 
Mass Radio Company (``Western''), licensee of Station WRNX(FM), 
Amherst, Massachusetts.  The complaint alleged that Saga 
broadcast a telephone conversation between Station WLZX(FM) radio 
personality Christopher Laursen and Station WRNX(FM) radio 
personality Dave Sears without prior notice to Mr. Sears.  
According to the complaint, Mr. Laursen called Mr. Sears and 
pretended to be a WRNX listener.3

     3.   On March 22, 2004, Saga responded to the NAL,4 stating 
that the Commission should cancel the NAL because Saga's conduct 
was not willful.  Additionally, Saga stated that the Enforcement 
Bureau should, at a minimum, have reduced the amount of the 
forfeiture based upon Saga's ``good faith and history of overall 
compliance.''5  


III. DISCUSSION

     4.   Saga argues that the forfeiture should be cancelled 
because Saga's conduct in this matter ``was not willful.''6  Saga 
concedes that its employee, Mr. Laursen, deliberately called Mr. 
Sears and broadcast their conversation on January 25, 2001, 
without notice to Mr. Sears.7  Saga, however, ``does not believe 
that the one-time isolated broadcast by an employee, against the 
directive of his employer, of an unauthorized telephone 
conversation is a `willful' violation,'' and that it ``should not 
be held liable for a forfeiture for willful violation when it has 
taken all reasonable precautions to avoid a violation, but an 
employee went `haywire' and violated the rule.''8  Saga argues 
that even if Mr. Laursen acted ``willfully'' in violating the 
Commission's rule, Saga's precautions and policy prohibiting such 
violations should forestall such a finding with respect to the 
company. 9 

     5.    We reject Saga's argument.  As Saga acknowledges, a 
``willful'' violation under section 503(b) means ``the conscious 
and deliberate commission or omission of [any] act, irrespective 
of any intent to violate'' the law.10  As Saga also 
acknowledges,11 the ``Commission has long held that licensees and 
other Commission regulatees are responsible for the acts and 
omissions of their employees and independent contractors,''12 and 
when the actions of independent contractors or employees have 
resulted in violations, the Commission has ``consistently refused 
to excuse licensees from forfeiture penalties.''13  Nothing in 
the record here suggests that this precedent is inapposite. 

     6.   The NAL proposed a $4,000 forfeiture against Saga, 
which is the base forfeiture amount established under the 
Forfeiture Policy Statement for the unauthorized broadcast of a 
telephone conversation.14  Saga argues that the Bureau should 
reduce the forfeiture amount because of the company's ``good 
faith.''  Nothing in the record supports a finding of good faith 
warranting reduction of the forfeiture amount.15          

     7.   Finally, Saga contends that the Bureau should reduce 
the forfeiture because of Saga's history of overall compliance.16  
We reject this claim because, in fact, the Enforcement Bureau has 
found various Saga affiliates in violation of the Commission's 
rules in numerous cases in the past four years.17  We therefore 
decline to reduce the forfeiture amount on these grounds.    

IV. ORDERING CLAUSES   

     8.   Accordingly, IT IS ORDERED THAT, pursuant to section 
503(b) of the Communications Act of 1934, as amended, and section 
1.80 of the Commission's rules,18  Saga Communications of New 
England, LLC, shall FORFEIT to the United States the sum of 
$4,000 for willfully violating section 73.1206 of the 
Commission's rules.

     9.   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.19  
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 bycheck 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 Group, 445 12th Street, S.W., 
Washington, D.C. 20554.20

     10.  The Commission will not consider reducing or canceling 
a forfeiture in response to a claim of inability to pay unless 
the respondent submits: (1) federal tax returns for the most 
recent three-year period; (2) financial statements prepared 
according to generally accepted accounting practices (``GAAP''); 
or (3) some other reliable and objective documentation that 
accurately reflects the respondent's current financial status.  
Any claim of inability to pay must specifically identify the 
basis for the claim by reference to the financial documentation 
submitted.  

IT IS FURTHER ORDERED THAT a copy of this Forfeiture Order shall 
be sent by Certified Mail - Return Receipt Requested to Lawrence 
D. Goldberg, Vice President, Saga Communications of New England, 
Inc, 15 Hampton Avenue, Northampton, Massachusetts 01060; its 
counsel, Gary S. Smithwick, Esquire, Smithwick & Belendiuk, P.C., 
5028 Wisconsin Avenue, N.W., Suite 301, Washington, D.C. 20016; 
and Erwin G. Krasnow, Esquire, Garvey Schubert Barer, Fifth 
Floor, 1000 Potomac Street, N.W., Washington, D.C. 20007-3501. 

          

     
                         FEDERAL COMMUNICATIONS COMMISSION
                    

     
                         David H. Solomon
                         Chief, Enforcement Bureau

_________________________

147 C.F.R.  73.1206.
2See Saga Communications of New England, Inc., Notice of Apparent 
Liability, 19 FCC Rcd 2741 (Enf. Bur. 2004).
3See Letter from Thomas G.  Davis, President, Western Mass  Radio 
Company,   to   Magalie    Roman   Salas,   Secretary,    Federal 
Communications Commission,  dated  February  1,  2001  (``Western 
Complaint'').
4See Saga Communications of New England, LLC, Response to  Notice 
of Apparent Liability for Forfeiture, March 22, 2004 (``Saga  NAL 
Response'').  
5See id. at 7.
6Saga cites  section 503(b)(1)(B)  of the  Communications Act  of 
1934, as amended  (the ``Act''), 47  U.S.C. 503(b)(1)(B),  which 
authorizes the Commission to assess forfeitures against those who 
have ``willfully or repeatedly failed  to comply with any of  the 
provisions of  this Act  or  of any  rule, regulation,  or  order 
issued by the Commission.''  See id. at 2-3.
7Id. at 2.
8Id. at 4.
9Id. at 3-5.  
10Id.  at  2-3  (citing   Application  for  Review  of   Southern 
Broadcasting Co., Memorandum Opinion and  Order, 6 FCC Rcd  4387, 
4388 (1991)).
11Id. at 4-5 (stating ``[L]icensees are responsible for the  acts 
of their employees''). 
12Eure Family Limited Partnership, Memorandum Opinion and Order, 
17 FCC Rcd 21861, 21863-64  7 (2002); MTD, Inc., Memorandum 
Opinion and Order, 6 FCC Rcd 34 (1991) (holding that a company's 
reliance on an independent contractor to construct a tower in 
compliance of FCC rules does not excuse that company from a 
forfeiture); Wagenvoord Broadcasting Co., Memorandum Opinion and 
Order, 35 FCC 2d 361 (1972) (holding a licensee responsible for 
violations of FCC rules despite its reliance on a consulting 
engineer); Wings Communications, Inc., Forfeiture Order, DA 04-
1383, 2004 WL 1103709 (Enf. Bur. May 19, 2004) (holding a company 
responsible for its employee's failure to notify the FAA of a 
lighting malfunction on its antenna tower);   and Petracom of 
Joplin, L.L.C., Forfeiture Order, 19 FCC Rcd 6248 (Enf. Bur. 
2004) (holding a licensee liable for its employee's failure to 
conduct weekly EAS tests and to maintain the ``issues/programs'' 
list).  
13
American Paging, Inc. of Virginia, Notice of Apparent Liability 
for Forfeiture, 12 FCC Rcd 10417, 10420  11 (Enf. & Cons. Inf. 
Div., Wireless Tel. Bur. 1997) (quoting Triad Broadcasting 
Company, Inc., Memorandum Opinion and Order, 96 FCC 2d 1235, 1244 
(1984)).  

14See Commission's Forfeiture Policy  Statement and Amendment  of 
Section  1.80  of  the   Rules  to  Incorporate  the   Forfeiture 
Guidelines, Report  and Order,  12 FCC  Rcd 17087,  17115  (1997) 
(``Forfeiture Policy Statement''), recon. denied, 15 FCC Rcd  303 
(1999). 
15Saga  cites  Infinity   Broadcasting  Corporation,   Memorandum 
Opinion and Order,  16 FCC Rcd  20156 (Enf. Bur.  2001) and  Long 
Nine, Inc., Forfeiture Order, 15  FCC Rcd 15747 (Enf. Bur.  2000) 
in support  of  its  claim  that  the  Bureau  should  reduce  or 
eliminate  the  forfeiture.   According  to  Saga,  these   cases 
establish  that  the   Bureau  has   cancelled  forfeitures   for 
violations of 47 C.F.R.  73.1206 ``where circumstances indicated 
the licensee was  operating under  a misimpression  or there  was 
some confusion as to whether the broadcast was authorized.''  See 
Saga Response at  5.  Both  of these  cases are  distinguishable, 
however.  In  Infinity, the  Bureau concluded  that the  licensee 
could have reasonably believed that the FCC staff approved of its 
procedures for  broadcast  telephone  conversations.   The  facts 
supporting a good faith finding in Long Nine involved a  mistaken 
belief that the station had previously given the required notice.  
Unlike in these cases,  the facts here  involve no such  mistaken 
belief.               
16Saga NAL Response at 7. 
17See, e.g.,  Saga Communications  of Illinois,  Inc., Notice  of 
Violation, EB-02-CG-239 (Enf. Bur. Chicago Office, June 11, 2002) 
(violation of section 17.23 of the Commission's rules, 47  C.F.R. 
 17.23 (antenna structure lighting)); Saga Communications of New 
England, Inc.,  Notice  of  Violation,  EB-00-BS-337  (Enf.  Bur. 
Boston Office, July 24, 2000)  (violation of section 17.4 of  the 
Commission's  rules,  47   C.F.R.     17.4  (antenna   structure 
registration)).
1847 U.S.C.  503(b); 47 C.F.R.  1.80.
1947 U.S.C.  504(a).
20See 47 C.F.R.  1.1914.