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


In the Matter of                )
                                )       
Crystal Coast Communications    )       File No. EB-03-NY-329
WRIV(AM)                        )       
Riverhead, New York            )        NAL/Acct.             No. 
200432380009
                                )       FRN: 0009 6876 82

                                        
                        FORFEITURE ORDER

Adopted:  October 19, 2004                              Released:  
October 21, 2004

By the Assistant Chief, Enforcement Bureau:

I.   INTRODUCTION

     1.   In this Forfeiture Order (``Order''), we issue a 
monetary forfeiture in the amount of two thousand four hundred 
dollars ($2,400) to Crystal Coast Communications, Inc. (``Crystal 
Coast''), licensee of radio station WRIV(AM), Riverhead, New 
York, for willful and repeated violation of Sections 
11.61(a)(2)(i)(A) and 73.1820(a)(1)(C)(iii) of the Commission's 
Rules ("Rules").1  The noted violations are for failing to 
conduct required weekly tests of the Emergency Alert System 
(``EAS'') and failing to maintain required station records of 
each test and activation of EAS.

     2.   On March 8, 2004, the Commission's New York, New York 
Field Office (``New York Office") issued a Notice of Apparent 
Liability for Forfeiture ("NAL"), to Crystal Coast for a proposed 
forfeiture in the amount of three thousand dollars ($3,000).2  
Crystal Coast filed a response to the NAL dated April 2, 2004. 

II.  BACKGROUND

     3.   On September 23, 2003, an agent from the New York 
          Office conducted an EAS inspection of radio station 
          WRIV(AM), located at 40 West Main Street, Riverhead, 
          New York, licensed to Crystal Coast.  The agent did not 
          find station records for EAS testing done for the weeks 
          of: March 9-29, 2003; April 13 to May 3, 2003; May 11, 
          2003 to August 9, 2003; and August 24-30, 2003, or find 
          reasons given why the EAS tests were not received.
   
     4.   On March 8, 2004, the New York Office issued the 
          subject NAL to Crystal Coast in the amount of $3,000 
          for apparent willful and repeated violation of Sections 
          11.61(a)(2)(i)(A) and 73.1820(a)(1)(C)(iii) of the 
          Rules.  In its response to the NAL, Crystal Coast 
          disputes the proposed violations, claims that it showed 
          the agent during the inspection the EAS reports that 
          the Commission cited it for not having, and urges the 
          Commission to rescind or reduce the forfeiture amount 
          based on its compliance history, its small market size 
          and in the interest of justice. 

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''),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 (``Forfeiture Policy Statement'').5  In 
          examining Crystal Coast'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.6

     6.   Section 11.61(a)(2)(i)(A) of the Rules requires 
          broadcast stations to conduct required weekly tests of 
          the EAS header and EOM codes at least once a week at 
          random days and times.  According to the agent, during 
          the investigation, Crystal Coast was unable to show the 
          agent that it had transmitted or received EAS tests for 
          the weeks listed above.

     7.   Section 73.1820(a)(1)(C)(iii) requires broadcast 
          stations to make entries into the station log of each 
          EAS test and activation made.  Crystal Coast did not 
          show the agent any tapes or other records of those EAS 
          tests having been made during the time period in 
          question, nor did it have records stating why it did 
          not make entries of transmitting or receiving tests for 
          that time period.  

     8.   In its response to the NAL, Crystal Coast claims that 
          that it gave the Commission agent, at the time of the 
          inspection, documentation of the EAS messages for the 
          time period required, as well as entries for the EAS 
          messages received and rebroadcast.  According to the 
          Commission agent, however, Crystal did not provide him 
          with any of these missing records on September 3, 2003 
          during the inspection, or thereafter.  We note further 
          that the records in question also were not associated 
          with Crystal Coast's response to the  NAL filed on 
          April 12, 2004.  Thus, Crystal Coast has not 
          substantiated its claims that it transmitted and 
          received or logged the required EAS tests on any of the 
          dates in question.  In the absence of any factual basis 
          for Crystal Coast's denial, we conclude on the basis of 
          the Commission agent's investigation, that Crystal 
          Coast failed to conduct and does not have station 
          records to demonstrate that it conducted EAS testing 
          for WRIV(AM) for the weeks of: March 9-29, 2003; April 
          13 to May 3, 2003; May 11, 2003 to August 9, 2003; and 
          August 24-30, 2003.7

     9.   Based on the findings of the NAL and Crystal Coast's 
          response thereto, we find that Crystal Coast's 
          violation of Sections 11.61(a)(2)(i)(A) and 
          73.1820(a)(1)(C)(iii) of the Rules was willful8 and 
          repeated.9  

     10.  Crystal Coast seeks a cancellation or reduction in the 
          amount of the proposed forfeiture claiming that it has 
          a history of overall compliance with the requirements 
          of the Act and the Commission rules.  A review of its 
          record confirms that Crystal Coast has a history of 
          overall compliance with Rules;10 thus, we find that a 
          reduction of the proposed forfeiture, from three 
          thousand dollars ($3,000) to two thousand four hundred 
          dollars ($2,400), is warranted.  

     11.  Finally, Crystal Coast seeks a reduction of the penalty 
based on its economic standing as ``a small market AM stand alone 
radio station. . .'' with keen competition, but has submitted no 
financial documentation to support this claim of economic 
hardship.  As stated in Crystal Coast's NAL, the Commission will 
not consider reducing or canceling a forfeiture on the basis of 
inability to pay unless the petitioner submits: (1) federal tax 
returns for the most recent three-year period; (2) financial 
statements prepared according to generally accepted accounting 
practices; or (3) some other reliable and objective documentation 
that accurately reflects the petitioner's current financial 
status.  Because Crystal Coast submitted none of this 
documentation, the Commission finds that a reduction on this 
basis is not warranted. 

IV.       ORDERING CLAUSES

     12.  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,11 Crystal Coast, IS LIABLE FOR A MONETARY FORFEITURE in 
the amount of two thousand four hundred dollars ($2,400) for 
willfully and repeatedly violating Sections 11.61(a)(2)(i)(A) and 
73.1820(a)(1)(C)(iii) of the Rules. 

     13.  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.12  
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. 20554.13
     
     14.  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, 
Crystal Coast Communications, 30 Park Avenue, Cohoes, New York, 
12047-3330.

                              FEDERAL COMMUNICATIONS COMMISSION

                         

                              George R. Dillon
                              Assistant Chief, Enforcement Bureau


           



_________________________

1   47   C.F.R.       11.61(a)(2)(i)(A)   and   47   C.F.R.     
73.1820(a)(1)(C)(iii).

2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 
200432380009 (Enf. Bur., New York Office, released March 8, 
2004).

3 47 U.S.C.  503(b).

4 47 C.F.R.  1.80.

5 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).

6 47 U.S.C.  503(b)(2)(D).

7 See,  Roser Communications  Network, Inc.,  18 FCC  Rcd  11766, 
11768 (Enf. Bur. 2003), making a similar finding where a licensee 
denied alleged EAS  violations and  did not  provide any  factual 
basis for the denial.

8  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).   

9 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.

10See Max Media of Montana, L.L.C., 18 FCC Rcd 21375, 21379 (Enf. 
Bur. 2003) (further reducing the proposed forfeiture from $11,000 
to  $8,800  for  antenna  structure  lighting  and   registration 
violations due to the licensee's history of overall  compliance); 
South Central Communications  Corp., 18  FCC Rcd  700, 702  (Enf. 
Bur. 2003)  (reducing the  proposed  forfeiture from  $10,000  to 
$8,000 for  antenna  structure  lighting violations  due  to  the 
licensee's history of overall compliance).

1147 C.F.R.  0.111, 0.311, 1.80(f)(4).

1247 U.S.C.  504(a).

13See 47 C.F.R.  1.1914.