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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-02-DV-313
Woodland Communications ) NAL/Acct. No. 200332800012
Licensee of Station WMF732 ) FRN No. 0002-3220-89
Montrose, Colorado )
Facility ID # 73626
Adopted: October 18, 2004 Released: October 20,
By the Assistant Chief, Enforcement Bureau:
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of eight thousand dollars
($8,000) to Woodland Communications Corporation (``Woodland'')
for willful and repeated violations of Sections 74.551(a)(2),
74.551(a)(3), and 74.561 of the Commission's Rules (``Rules'').1
The noted violations involve Woodland's operation of radio
transmitting equipment on an unauthorized frequency and from an
2. On April 30, 2003, the Commission's Denver, Colorado
District Office (``Denver Office'') issued a Notice of Apparent
Liability for Forfeiture (``NAL'') to Woodland for a forfeiture
in the amount of eight thousand dollars ($8,000).2 Woodland
filed a response to the NAL on May 29, 2003.
3. On August 1, 2002, a Denver Office agent inspected
broadcast stations KUBC (AM) and KKXK (FM) and determined that
the STL transmitter used by KUBC-AM, call sign WMF732 was
operating on an unauthorized frequency and from an unauthorized
location. The Denver Office agent verified that the STL
transmitter was operating on the frequency 948.873 MHz instead
of on the authorized frequency of 951.000 MHz. Further, the
studio and the STL transmitter were located at 106 Rose Lane,
Montrose Colorado instead of at the authorized location of 2018
South Townsend, Montrose, Colorado.
4. On April 30, 2003, the Denver Office issued the subject
NAL to Woodland for operating the STL transmitter on an
unauthorized frequency and from an unauthorized location. The
NAL found that Woodland did not promptly change the operating
frequency to the authorized frequency, and that Woodland did not
promptly file an application to change the transmitter location.
Woodland filed a response to the NAL on May 29, 2003. In its
response, Woodland disputed the claim that it did not take
immediate action to come into compliance with the noted Rule
violations. Woodland claimed that it was delayed by
circumstances beyond its control, and that the NAL should be
cancelled because Woodland took action to come into compliance.
In the alternative, Woodland requested a reduction of the
forfeiture amount because it imposes an economic burden on the
licensee. Woodland enclosed its tax returns from 2001 to 2003
in support of its economic burden claim.
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''),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''). In examining Woodland'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.5
6. Section 74.551(a)(2) of the Rules requires prior
Commission approval for a change in operating frequency or
channel bandwidth.6 In its response, Woodland conceded that it
did not file an application to change the operating frequency
for the STL transmitter prior to the agent's inspection.
Therefore, we find that Woodland willfully7 and repeatedly8
violated Section 74.551(a)(2) of the Rules.
7. Section 74.561 of the Rules requires a licensee to
maintain the operating frequency of the transmitter within
0.005% of the assigned frequency.9 According to the NAL, at the
time of the inspection WMF732 was transmitting on 948.873 MHz,
more than 0.22% from the assigned frequency of 951.000 MHz. In
its response, Woodland did not dispute that it was operating on
the incorrect frequency. Accordingly, we find that Woodland
willfully and repeatedly violated Section 74.561 of the Rules.
8. Section 74.551(a)(3) of the Rules requires prior
Commission approval for a change in the location of the
transmitter or transmitting antenna, unless relocation of the
transmitter occurs within the same building.10 In its response,
Woodland concedes that it did not seek Commission approval when
it changed the location of the transmitter. Therefore, we find
that Woodland willfully and repeatedly violated Section
74.551(a)(3) of the Rules.
9. The NAL found that Woodland failed to come into
compliance with the noted sections of the rules in a timely
fashion. In response, Woodland claimed that it immediately
ordered new equipment to operate on the authorized frequency and
promptly filed an application to change the authorized site for
WMF732, but was delayed by circumstances beyond its control.
Woodland requested cancellation of the NAL based on its post
investigation attempts to come into compliance. The Commission
has been clear 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."11
Any effort made by Woodland to come into compliance, whether
immediate or delayed by extenuating circumstances, does not
negate its willful and repeated violations of the Rules.
Therefore, we conclude that Woodland's effort to correct the
violations after they were discovered by the Commission agent is
not a mitigating factor and the forfeiture amount will not be
cancelled or reduced on this basis.
10. Further, Woodland requested a reduction in the
forfeiture amount because it imposes an economic hardship on the
licensee. We will interpret this to be a claim of inability to
pay. To assess a claim of inability to pay, the Commission
reviews a claimant's gross revenues to determine if it is able
to pay the assessed forfeiture.12 We reviewed the financial
information submitted by Woodland and find that it does not
provide a basis for cancellation or reduction. The forfeiture is
a very small percentage of Woodland's gross revenues, and
therefore does not warrant reduction.13
IV. ORDERING CLAUSES
11. 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,14 Woodland Radio, Inc. IS LIABLE FOR A
MONETARY FORFEITURE in the amount of eight thousand dollars
($8,000) for its willful and repeated violation of Sections
74.551(a)(2), 74.551(a)(3), and 74.561 of the Rules.
12. 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.15
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. 20554.16
13. IT IS FURTHER ORDERED that a copy of this Order
shall be sent via First Class Mail and Certified Mail, Return
Receipt Requested, to Woodland Radio, Inc., 1275 First Avenue,
No. 125, New York, New York, 10021.
FEDERAL COMMUNICATIONS COMMISSION
George R. Dillon
Assistant Chief, Enforcement Bureau
- Unhandled Picture -
1 47 C.F.R. § 74.103(c).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332800012 (Enf. Bur., Denver Office, released April 30, 2003).
3 47 U.S.C. § 503(b).
4 47 C.F.R. § 1.80.
5 47 U.S.C. § 503(b)(2)(D).
6 47 C.F.R. § 74.551(a)(2).
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 ....'' Southern California Broadcasting Co., 6 FCC
Rcd 4387 (1991).
8 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, 6 FCC Rcd
4387, 4388 (1991) and Western Wireless Corporation, 18 FCC Rcd
10319 at fn. 56 (2003).
9 47 C.F.R. § 74.561
10 47 C.F.R. § 74.551(a)(3)
11 Seawest Yacht Brokers, 9 FCC Rcd 6099, 6099 (1994)
12 See Forfeiture Policy Statement, 12 FCC Rcd 17087, 17106- 07
(1997), recon. denied, 15 FCC Rcd 303 (1999)
13 See Alpha Ambulance, Inc., 19 FCC Rcd 2547, 2548 (2004),
citing PJB Communications, 7 FCC Rcd 2088, 2089 (1992)
(forfeiture not deemed excessive where it represented
approximately 2.02 percent of the violator's gross revenues);
Local Long Distance, Inc., 16 FCC Rcd 10023, 10025 (2001)
(forfeiture not deemed excessive where it represented
approximately 7.9 percent of the violator's gross revenues). In
this case, the $8,000 proposed forfeiture constitutes less than 1
percent of Woodland's average gross revenues for 2000-2002, which
is a significantly lower percentage of gross revenues than in
both Alpha Ambulance, and Local Long Distance, Inc.
14 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
15 47 U.S.C. § 504(a).
16 See 47 C.F.R. § 1.1914.