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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Nassau Broadcasting II, LLC,
) File No.: EB-10-PA-0079
) NAL/Acct. No.: 201232400002
Licensee of Station WPLY
) FRN: 0003759685
Mount Pocono, Pennsylvania
Facility ID #67060
NOTICE OF APPARENT LIABILITY FOR FORFEITURE AND ORDER
Adopted: January 19, 2012 Released: January 19, 2012
By the District Director, Philadelphia Office, Northeast Region,
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Nassau Broadcasting II, LLC, Debtor-in-Possession ("Nassau
Broadcasting"), licensee of AM Station WPLY in Mount Pocono,
Pennsylvania, apparently willfully and repeatedly violated section
73.1745(a) of the Commission's Rules ("Rules") by operating its
station with only one of its four authorized directional antennas at a
reduced power of 250 Watts during daytime hours without a Special
Temporary Authorization (STA), in direct contravention of the terms of
its station authorization. We also find that Nassau Broadcasting
willfully and repeatedly violated section 73.3526 of the Rules by
failing to maintain and make available for inspection a local public
inspection file at Station WPLY's main studio. We conclude that Nassau
Broadcasting is apparently liable for a forfeiture in the amount of
seventeen thousand dollars ($17,000). We further direct Nassau
Broadcasting to submit a written statement signed under penalty of
perjury stating that Station WPLY is now in compliance with sections
73.1745(a) and 73.3526 of the Rules.
2. On March 25, 2010, agents from the Enforcement Bureau's Philadelphia
Office conducted a random inspection of Station WPLY's main studio in
Stroudsburg, Pennsylvania with several staff members, including the
station engineer and the station sales director. During the
inspection, the agent found that Station WPLY did not have a local
public inspection file and the station engineer and sales director
both admitted that the station had never maintained a local public
3. After conducting the inspection at Station WPLY's main studio on March
25, 2010, the agents proceeded to the Station's transmitter site and
inspected Station WPLY's four antenna structures with the station
engineer. During the inspection, the station engineer identified for
the agent the one tower (antenna structure number 1215954) that was
being used by the station. The station engineer reported that Station
WPLY had been transmitting from only one of its four authorized
antenna structures with only 250 Watts instead of its authorized
daytime power of 1000 Watts. The station engineer further reported
that the station had not obtained an STA to operate at variance from
its licensed facilities.
4. On April 5, 2010, Nassau Broadcasting notified the agents in the
Philadelphia Office that they filed an application for an STA that day
to operate the station at reduced power using only one of the
station's four authorized towers. The Commission granted the
application on April 6, 2010.
5. On April 12, 2010, an agent contacted Crown Castle, the entity that
maintains Station WPLY's towers. Crown Castle reported that they had
been maintaining Station WPLY's antenna structures for eight years
and, during that time, only one tower was in operation. When the agent
contacted Nassau Broadcasting regarding the report from Crown Castle,
Nassau confirmed that, since it obtained the station in 2000, it had
operated with only one tower at reduced power without ever having
obtained an STA prior to the STA that was granted on April 6, 2010.
6. 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.
A. Unauthorized Operation
7. Section 73.1745(a) of the Rules states that no broadcast station shall
operate at times, or with modes or power, other than those specified
and made part of the license. Station WPLY's license specifies that
the station must operate with a power of 1000 Watts during daytime
hours. During the March 25, 2010 inspection, Nassau Broadcasting
admitted that it was operating Station WPLY from only one of its four
authorized towers at a reduced power of 250 Watts without an STA.
Nassau Broadcasting later admitted that it had been broadcasting with
only one tower at reduced power without an STA since it purchased
Station WPLY in 2000. Based on the evidence before us, we find that
Nassau Broadcasting apparently willfully and repeatedly violated
section 73.1745(a) of the Rules by operating Station WPLY with a mode
and level of power that were in direct contravention of its station
A. Public Inspection File
8. Section 73.3526(a)(2) of the Rules requires that every licensee of an
AM or FM station shall maintain a public inspection file containing
the material, relating to that station, described in Section
73.3526(e) of the Rules. Section 73.3526(b)(1) of the Rules requires
that the public inspection file shall be maintained at the station's
main studio. Section 73.3526(c)(1) of the Rules specifies that the
file shall be available for public inspection at any time during
regular business hours. During the March 25, 2010 inspection, agents
attempted to review Station WPLY's public inspection file, but there
was no file available for review at the main studio location. Station
WPLY's engineer and sales manager both admitted to the agents that
Nassau Broadcasting has never maintained a public inspection file for
Station WPLY at its main studio. Based on the evidence before us, we
conclude that Nassau Broadcasting apparently willfully and repeatedly
violated section 73.3526 of the Rules.
A. Proposed Forfeiture Amount
9. Pursuant to the Commission's Forfeiture Policy Statement, and section
1.80 of the Rules, the base forfeiture amount for operating the
station in direct contravention of the terms of its station
authorization is $4,000, and the base forfeiture amount for violation
of the public file rule 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, any history
of prior offenses, ability to pay, and other such matters as justice
may require. Because Nassau Broadcasting was in violation of our Rules
since its purchase of Station WPLY in 2000, we find that upward
adjustments of $2,000 for the public file violation and $1,000 for the
unauthorized operation violation are warranted. Applying the
Forfeiture Policy Statement, section 1.80 of the Rules, and the
statutory factors to the instant case, we conclude that Nassau
Broadcasting is apparently liable for a $17,000 forfeiture.
10. We also direct Nassau Broadcasting to submit a written statement
pursuant to section 1.16 of the Rules, signed under penalty of perjury
by an officer or director of Nassau Broadcasting, stating that it is
currently maintaining a public inspection file that is in full
compliance with the requirements under section 73.3526 of the Rules,
and that it is either operating consistent with its station
authorization or has a valid STA. This statement must be provided to
the Philadelphia 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 Order.
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, Nassau Broadcasting
II, LLC is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of seventeen thousand dollars ($17,000) for
violations of sections 73.1745(a) and 73.3526 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, Nassau
Broadcasting 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 Nassau Broadcasting II, LLC 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 NAL/Account number and FRN
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 regarding payment
procedures, please contact the Financial Operations Group Help Desk at
1-877-480-3201 or Email: ARINQUIRIES@fcc.gov. Nassau Broadcasting
shall also send electronic notification to NER-Response@fcc.gov on
the date said payment is made.
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 1.80(f)(3) and 1.16 of the Rules. The written statement, if
any, must be mailed to Federal Communications Commission, Enforcement
Bureau, Northeast Region, Philadelphia Office, One Oxford Valley
Building, Suite 404, 2300 East Lincoln Highway, Langhorne,
Pennsylvania 19047, and must include the NAL/Account number referenced
in the caption. The statement should also be emailed to
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 and Order shall be sent by both Certified Mail, Return
Receipt Requested, and regular mail, to Nassau Broadcasting at 22 S.
6th Street, Stroudsburg, Pennsylvania, 18360.
FEDERAL COMMUNICATIONS COMMISSION
Acting District Director
47 C.F.R. S: 73.1745(a).
47 C.F.R. S: 73.3526
See File No. BSTA-20100405ABU.
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
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: 73.1745(a).
47 C.F.R. S: 73.3526(a)(2).
47 C.F.R. S: 73.3526(b)(1).
47 C.F.R. S: 73.3526(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"), recons. denied,
15 FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
47 U.S.C. S: 503(b)(2)(E).
47 C.F.R. S: 1.16.
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.204(b), 0.311, 0.314, 1.80,
See 47 C.F.R. S: 1.1914.
See 47 C.F.R. S:S: 1.80(f)(3), 1.16.
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Federal Communications Commission DA 12-59
Federal Communications Commission DA 12-59