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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Crystal Coast Communications ) File No. EB-03-NY-329
Riverhead, New York ) NAL/Acct. No.
) FRN: 0009 6876 82
Adopted: October 19, 2004 Released:
October 21, 2004
By the Assistant Chief, Enforcement Bureau:
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.
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.
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
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,
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. §
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200432380009 (Enf. Bur., New York Office, released March 8,
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
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.