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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
File No.: EB-10-DT-0039
R. J.'s Late Night Entertainment )
Corporation NAL/Acct. No.: 201232360002
Licensee of Station WHPR-FM FRN: 0011011509
Highland Park, Michigan Facility ID No. 54428
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: October 21, 2011 Released: October 24, 2011
By the District Director, Detroit Office, Northeast Region, Enforcement
1. In this Notice of Apparent Liability for Forfeiture and Order ("NAL"),
we find that R.J.'s Late Night Entertainment Corporation ("R.J."),
licensee of Non-Commercial Educational ("NCE") Class D Station
WHPR-FM, in Highland Park, Michigan (the "Station"), apparently
willfully and repeatedly violated: (1) section 11.35(a) of the
Commission's Rules ("Rules") by failing to maintain operational EAS
equipment; (2) section 73.1690(b)(2) of the Rules for moving the
Station's transmitter without Commission authorization; and (3)
section 73.3527(b)(1) of the Rules by failing to maintain and make
available a local public inspection file. We conclude that R.J. is
apparently liable for a forfeiture in the amount of twenty-two
thousand dollars ($22,000). We further direct R.J. to submit a written
statement signed under penalty of perjury stating that Station WHPR-FM
is now in compliance with sections 11.35(a) and 73.3527(b)(1) of the
2. On March 8, 2010, in response to two complaints, an agent from the
Enforcement Bureau's Detroit Office commenced an investigation into
the operation of Station WHPR-FM. Using direction- finding techniques,
the agent determined that R.J. was operating Station WHPR-FM from a
transmitter location approximately .46 miles (20 Seconds South and 19
Seconds East) from its authorized transmitter location.
3. On March 12, 2010, agents conducted an inspection at Station WHPR-FM's
main studio, located at 160 Victor Street in Highland Park, Michigan.
During the inspection, agents found that the Station did not have a
public inspection file. The agent also observed that the Station had
not installed any emergency alert system ("EAS") equipment, though an
EAS decoder was found by station staff in a closet.
4. On June 17, 2010, the Detroit Office issued a Letter of Inquiry
("LOI") requesting information regarding Station WHPR-FM's transmitter
location, EAS equipment, and public inspection file. On August 3,
2010, the Detroit Office received a reply to the LOI from R.J.'s
President. In the LOI Response, R.J. explained that they had moved
their transmitter in July 2009, and mistakenly believed that the short
distance of the move did not require FCC authorization. R.J. further
admitted that they did not have the required EAS equipment and that
they had not been maintaining a public inspection file since the
public library, where they previously maintained their public file,
closed "several years ago."
5. Section 503(b) of the Communications Act of 1934, as amended ("Act"),
provides that any person who willfully or repeatedly fails to comply
substantially with the terms and conditions of any license, or
willfully or repeatedly fails to comply with any of the provisions of
the Act or of any rule, regulation, or order issued by the Commission
thereunder, shall be liable for a forfeiture penalty. Section
312(f)(1) of the Act defines willful as the "conscious and deliberate
commission or omission of [any] act, irrespective of any intent to
violate" the law. The legislative history to section 312(f)(1) of the
Act clarifies that this definition of willful applies to both sections
312 and 503(b) of the Act, and the Commission has so interpreted the
term in the section 503(b) context. The Commission may also assess a
forfeiture for violations that are merely repeated, and not willful.
The term "repeated" means the commission or omission of such act more
than once or for more than one day.
6. EAS Equipment. Section 11.35(a) of the Rules states that broadcast
stations "are responsible for ensuring that the EAS Encoders, EAS
Decoders and Attention Signal generating and receiving equipment used
as part of the EAS are installed so that the monitoring and
transmitting functions are available during the times the stations and
systems are in operation." Section 11.11(b) of the Rules specifies
that Class D NCE stations are only required to install EAS decoders.
During the March 12, 2010, inspection, the agent observed that R.J.
had not installed the required EAS decoder equipment. In their LOI
Response, R.J. admitted that WHPR-FM had not installed an EAS decoder,
which R.J. acknowledged is required by all Class D NCE stations.
Accordingly, we find that R.J. willfully and repeatedly violated
section 11.35(a) of the Rules by failing to install an EAS decoder at
7. Modification of Transmission Systems. Section 73.1690(b) of the Rules,
in relevant part, states:
The following changes may be made only after the grant of a construction
permit application on FCC Form 301 for commercial stations or Form 340 for
noncommercial educational stations: . . .
(2) Any change in station geographic coordinates, including coordinate
corrections of more than 3 seconds latitude and/or 3 seconds longitude. FM
and TV directional stations must also file a construction permit
application for any move of the antenna to another tower structure located
at the same coordinates.
On March 8, 2010, using direction-finding techniques, an agent from the
Detroit Office determined that R.J. was transmitting from a location 20
Seconds South and 19 Seconds East of Station WHPR-FM's authorized
location. In their LOI Response, R.J. admitted to moving their transmitter
to the unauthorized location in July 2009. Although R.J. claimed that it
did not believe that prior FCC authorization was required for what it
believed was a "minimal" move, we note that it is well established that a
violator's lack of knowledge or erroneous beliefs does not excuse the
violation nor serve as a mitigating factor warranting a forfeiture
reduction. Furthermore, although R.J. has since filed a modification
application to reflect its new transmitter site, which the Commission
granted in October of last year, this subsequent remedial action does not
nullify or excuse the licensee's rule violation. Accordingly, we find that
R.J. willfully and repeatedly violated section 73.1690(b)(2) of the Rules
by failing to obtain prior FCC authorization to move their transmitter to
a new location.
8. Public Inspection File. Section 73.3527(a)(2) of the Rules requires
non-commercial educational broadcast stations to maintain for public
inspection a file containing materials listed in that section.
Furthermore, section 73.3527(b)(1) requires that the public file be
maintained at the station's main studio, and section 73.3527(c)(1) of
the Rules specifies that the file shall be available for public
inspection at any time during regular business hours. On March 12,
2010, when agents from the Detroit Office asked to inspect the public
inspection file at Station WHPR-FM's main studio during normal
business hours, station staff was not able to produce a public
inspection file. In their LOI Response, R.J. reported that it had not
maintained a public file since the public library, where they
previously maintained their public file, closed "several years ago."
Accordingly, we find that R.J. willfully and repeatedly violated
section 73.3527 of the Rules by failing to maintain and make available
a local public inspection file.
9. Proposed Action. Pursuant to the Commission's Forfeiture Policy
Statement and section 1.80 of the Rules, the base forfeiture amount
for failing to have EAS equipment installed or operational is $8,000;
operation at an unauthorized location is $4,000; and failing to
maintain a public inspection file is $10,000. In assessing the
monetary forfeiture amount, we must also take into account the
statutory factors set forth in section 503(b)(2)(E) of the Act, which
include the nature, circumstances, extent, and gravity of the
violations, and with respect to the violator, the degree of
culpability, and history of prior offenses, ability to pay, and other
such matters as justice may require. Applying the Forfeiture Policy
Statement, section 1.80 of the Rules, and the statutory factors to the
instant case, we conclude that R.J. is apparently liable for a total
forfeiture of $22,000.
10. We also direct R.J. to submit a statement, signed under penalty of
perjury by an officer or director of R.J Late Night Entertainment
Corporation, stating that it is currently maintaining a public
inspection file that is in full compliance with the requirements under
section 73.3527 of the Rules, and that it has installed and is
maintaining an EAS decoder as required by section 11.35(a) of the
Rules. This statement must be provided to the Detroit Office at the
address listed in paragraph 15, infra, within thirty (30) days of the
release date of this Notice of Apparent Liability for Forfeiture and
IV. ORDERING CLAUSES
11. Accordingly, IT IS ORDERED that, pursuant to section 503(b) of the
Communications Act of 1934, as amended, and sections 0.111, 0.204(b),
0.311, 0.314, and 1.80 of the Commission's Rules, R.J.'s Late Night
Entertainment Corporation is hereby NOTIFIED of this APPARENT
LIABILITY FOR A FORFEITURE AND ORDER in the amount of twenty-two
thousand dollars ($22,000) for violations of sections 11.35(a),
73.1690(b)(2), and 73.3527(b)(1) of the Rules.
12. IT IS FURTHER ORDERED that, pursuant to section 1.80 of the
Commission's Rules, within thirty (30) days of the release date of
this Notice of Apparent Liability for Forfeiture and Order, R.J's Late
Night Entertainment Corporation SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
13. IT IS FURTHER ORDERED that R.J.'s Late Night Entertainment Corporation
SHALL SUBMIT a sworn statement as described in paragraph 10 to the
Enforcement Bureau Office listed in paragraph 15 within thirty (30)
days of the release date of this Notice of Apparent Liability for
Forfeiture and Order.
14. Payment of the forfeiture must be made by credit card, check, or
similar instrument, payable to the order of the Federal Communications
Commission. The payment must include the Account Number and FRN Number
referenced above. Payment by check or money order may be mailed to
Federal Communications Commission, P.O. Box 979088, St. Louis, MO
63197-9000. Payment by overnight mail may be sent to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101. Payment by wire transfer may be made to ABA Number
021030004, receiving bank TREAS/NYC, and account number 27000001. For
payment by credit card, an FCC Form 159 (Remittance Advice) must be
submitted. When completing the FCC Form 159, enter the NAL/Account
number in block number 23A (call sign/other ID), and enter the letters
"FORF" in block number 24A (payment type code). Requests for full
payment under an installment plan should be sent to: Chief Financial
Officer -- Financial Operations, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. If you have questions, please contact the
Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov. If payment is made, R.J.'s Late Night
Entertainment Corporation will send electronic notification on the
date said payment is made to NER-Response@fcc.gov.
15. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
sections 1.16 and 1.80(f)(3) of the Rules. Mail the written statement
to Federal Communications Commission, Enforcement Bureau, Northeast
Region, Detroit Office, 24897 Hathaway Street, Farmington Hills,
Michigan, 48335-1552 and include the NAL/Acct. No. referenced in the
caption. In addition, R.J.'s Late Night Entertainment Corporation
shall email the written response to NER-Response@fcc.gov.
16. The Commission will not consider reducing or canceling a forfeiture in
response to a claim 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 ("GAAP"); or (3) some other reliable and
objective documentation that accurately reflects the petitioner'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.
17. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by both Certified Mail, Return Receipt
Requested, and regular mail, to R.J.'s Late Night Entertainment
Corporation at 160 Victor Street, Highland Park, Michigan 48203.
FEDERAL COMMUNICATIONS COMMISSION
James A. Bridgewater
See 47 C.F.R. S:S: 11.35(a), 73.1690(b)(2), 73.3527(b)(1).
See Letter of Inquiry from James Bridgewater, District Director, Detroit
Office, Northeast Region, to R.J.'s Late Night Entertainment Corporation,
dated June 17, 2010 ("LOI").
See Letter from Henry Tyler, President, R.J.'s Late Night Entertainment,
to James Bridgewater, District Director, Detroit Office, Northeast Region,
dated August 3, 2010 ("LOI Response").
In the LOI Response, R.J. reported that, on June 28, 2010, it filed an
application for modification of its licensed facilities to reflect its new
transmitter site. See id. at 2. The modification application was granted
on October 26, 2010 (BPED20100625ADJ), and the license to cover was
granted on May 6, 2011 (BPED20110419AAL).
See 47 U.S.C. S: 503(b).
See 47 U.S.C. S: 312(f)(1).
See H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in section 312] defines the terms `willful' and `repeated' for
purposes of section 312, and for any other relevant section of the act
(e.g., section 503) . . . . As defined[,] . . . `willful' means that the
licensee knew that he was doing the act in question, regardless of whether
there was an intent to violate the law. `Repeated' means more than once,
or where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
sections 312 and 503, and are consistent with the Commission's application
of those terms . . . .").
See, e.g., Application for Review of Southern California Broadcasting Co.,
Memorandum Opinion and Order, 6 FCC Rcd 4387, 4388 (1991) ("Southern
California Broadcasting Co.").
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) ("Callais
Cablevision, Inc.") (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under section 503(b) of
the Act, provides that "[t]he term 'repeated', when used with reference to
the commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day."
47 C.F.R. S: 11.35(a).
See 47 C.F.R. S: 11.11(b).
See, e.g., Kenneth Paul Harris, Sr., 15 FCC Rcd 12933, 12935 (Enf. Bur.
2000) (denying a mitigation claim of a broadcast licensee, stating that
its ignorance of the law did not excuse the unauthorized transfer of the
station); Maxwell Broadcasting Group, Inc., 8 FCC Rcd 784, 784 (MMB 1993)
(denying a mitigation claim of a noncommercial broadcast licensee, stating
that the excuse of "inadverten[ce], due to inexperience and ignorance of
the rules . . . are not reasons to mitigate a forfeiture" for violation of
the advertisement restrictions).
See supra note 4.
See, e.g., Rama Communications, Inc., Memorandum Opinion and Order, 23 FCC
Rcd 18209 (Enf. Bur. 2008).
See 47 C.F.R. S: 73.3527(a)(2).
See 47 C.F.R. S: 73.3527(b)(1) & (c)(1).
The 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 (1997) ("Forfeiture Policy Statement"), recon. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
See 47 U.S.C. S: 503(b)(2)(E).
See 47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.204(b), 0.311, 0.314,
1.80, 11.35(a), 73.1690(b)(2), 73.3527(b)(1).
See 47 C.F.R. S: 1.1914.
See 47 C.F.R. S:S: 1.16, 1.80(f)(3).
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Federal Communications Commission DA 11-1755
Federal Communications Commission DA 11-1755