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Federal Communications Commission
Washington, D.C. 20554
In the Matter of J.M.J. Radio, Inc. Licensee of AM Station WQOR ) ) ) ) )
) File No: EB-09-PA-0287 NAL/Acct. No.: 201132400002 FRN: 0017570847
Facility ID: 8092
Adopted: October 28, 2013 Released: October 28, 2013
By the Regional Director, Northeast Region, Enforcement Bureau:
1. In this Forfeiture Order (Order), we issue a monetary forfeiture in
the amount of one thousand five hundred dollars ($1,500) to J.M.J.
Radio, Inc. (JMJ), the licensee of AM Station WQOR (Station) in
Olyphant, Pennsylvania, for willfully and repeatedly violating Section
73.1125(a) of the Commission's rules (Rules).^ The noted violation
involved JMJ's failure to maintain a management and staff presence at
the Station's main studio.
2. On November 25, 2009, an agent from the Enforcement Bureau's
Philadelphia Office (Philadelphia Office) conducted an inspection of
Station WQOR's main studio, which was located inside a church building
at St. Joseph Oblate Seminary (Seminary), 1880 Highway 315, Pittston,
Pennsylvania. A church employee escorted the agent to the Station's
main studio on the second floor of the church building. The agent
found that the main studio was locked. When the church employee opened
the door for the agent, the agent found no station personnel present.
The church employee reported that no one associated with the Station
works at the main studio location and the room is always locked.
3. After speaking to the church employee, the agent contacted the station
engineer by telephone and requested his assistance with the
inspection. The station engineer arrived at the main studio within
thirty minutes and the agent conducted the inspection. In response to
questions about staffing at the main studio, the station engineer
reported that the room was always locked and that there were no
designated full-time or part-time personnel at the main studio. The
station engineer also reported that he usually came to the main studio
once a week to review Emergency Alert System (EAS) log printouts and
perform any necessary maintenance. The agent advised the station
engineer that the Station must maintain a meaningful management and
staff presence at its main studio during normal business hours.
4. On December 17, 2009, another FCC agent attempted to conduct a
follow-up inspection at the Station's main studio. The agent observed
that there were no employees at the main studio to facilitate an FCC
inspection or to provide public access. The agent then contacted the
licensee and spoke with an individual identified in the Station
records as a Director and Officer of JMJ (Director). She acknowledged
that the main studio does not have any designated personnel. The agent
advised the JMJ Director that the Station must maintain a meaningful
management and staff presence at its main studio during normal
business hours. The JMJ Director stated that she was not aware of the
main studio requirement and would thereafter staff the Station's main
studio as required.
5. On December 1, 2010, the Philadelphia Office issued a Notice of
Apparent Liability for Forfeiture (NAL) to JMJ for failure to have
adequate staffing at the Station's main studio, in violation of
Section 73.1125 of the Rules.^ The NAL proposed a $10,000 forfeiture
against the licensee. JMJ submitted a response to the NAL certifying
that it had corrected all of the violations set forth in the NAL and
requesting cancellation or reduction of the proposed forfeiture
because (1) the Commission does not have the authority to assess a
forfeiture for the Station's alleged failure to comply with
requirements that have not been adopted pursuant to a rulemaking
proceeding, (2) the Station did in fact maintain a meaningful
management and staff presence at the main studio, albeit not with paid
staff, (3) the Station has a history of compliance with the Rules, and
(4) the Station's precarious financial situation renders it unable to
pay the proposed forfeiture.^
6. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Communications Act of 1934, as amended
(Act),^ Section 1.80 of the Rules,^ and the Forfeiture Policy
Statement.^ In examining JMJ's response, Section 503(b)(2)(E) 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 other such matters as justice may
require.^ As discussed below, we have considered JMJ's response in
light of these statutory factors and find that a reduction in the
forfeiture is warranted based on JMJ's inability to pay.
A. Authority to Enforce Main Studio Staffing Requirements
7. We disagree with JMJ's claim that the Commission does not have the
authority to enforce the main studio staffing requirements because
such requirements are not specifically set forth in Section 73.1125 of
the Rules.^ In a 1988 rulemaking proceeding addressing the role of a
station's main studio in light of the elimination of the program
origination rule, the Commission clarified that, among other things,
the main studio must continue to "maintain a meaningful management and
staff presence."^ In subsequent decisions, the Commission has provided
further guidance by defining "meaningful presence" as full-time
managerial and full-time staff personnel.^ The Commission also has
stated that, although management personnel need not be "chained to
their desks" during normal business hours, they must "report to work
at the main studio on a daily basis, spend a substantial amount of
time there and . . . use the studio as a `home base.'"^ In providing
such guidance, the Commission exercised its authority to interpret its
rules without being subject to the rulemaking requirements under the
Administrative Procedure Act (APA).^ We therefore reject JMJ's
argument that the Bureau does not have the authority to enforce the
main studio requirements.
B. Staffing at JMJ's Main Studio
8. JMJ maintains that, notwithstanding what the agent encountered on
November 25, 2009, and December 17, 2009, the Station was in
compliance with the main studio staffing requirements at the time of
those inspections. JMJ claims that the individuals with whom the agent
spoke "were unable to accurately explain precisely how they were in
compliance with the staffing component of the Main Studio Rule."^ ^
JMJ explains that the "responses that FCC inspectors received from JMJ
staff can be attributed to the staff's erroneous belief that the FCC
was asking about paid employees of the Station."^ ^ We find that, even
if the individuals with whom the agent spoke believed that the agent
was asking about paid staff, the fact remains that, on two days -
November 25, 2009 and December 17, 2009 - the agent found no personnel
at the Station's main studio. That is the primary basis for our
conclusion that JMJ violated the main studio staffing requirements.^ ^
We therefore find that JMJ willfully and repeatedly violated Section
73.1125(a) of the Rules.^
C. Inability to Pay
9. JMJ asserts that its inability to pay the forfeiture warrants a
reduction in the proposed forfeiture.^ We agree. With regard to an
individual's or ^ entity's inability to pay a claim, the Commission
has determined that gross revenues are generally the best indicator of
an ability to pay a forfeiture.^ We have reviewed the documents that
JMJ submitted in support of its inability to pay claim and find a
sufficient basis for reducing the forfeiture to $1,500. However, we
caution JMJ that a party's inability to pay is only one factor in our
forfeiture calculation analysis, and is not dispositive.^ We have
previously rejected inability to pay claims in cases of repeated or
otherwise egregious violations.^ Therefore, future violations of this
kind may result in significantly higher forfeitures that may not be
reduced due to JMJ's financial circumstances.
III. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.204,
0.311, 0.314, and 1.80(f)(4) of the Commission's rules, J.M.J. Radio,
Inc. IS LIABLE FOR A MONETARY FORFEITURE in the amount of one thousand
five hundred dollars ($1,500) for violations of Section 73.1125(a) of
the Commission's rules.^
11. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Commission's rules within thirty (30) calendar
days after the release date of this Forfeiture Order.^ If the
forfeiture is not paid within the period specified, the case may be
referred to the U.S. Department of Justice for enforcement of the
forfeiture pursuant to Section 504(a) of the Act.^ J.M.J. Radio, Inc.
shall send electronic notification of payment to NER-Response@fcc.gov
on the date said payment is made. The payment must be made by check or
similar instrument, wire transfer, or credit card, and must include
the NAL/Account Number and FRN referenced above. Regardless of the
form of payment, a completed FCC Form 159 (Remittance Advice) must be
submitted.^ When completing the FCC Form 159, enter the Account Number
in block number 23A (call sign/other ID) and enter the letters "FORF"
in block number 24A (payment type code). Below are additional
instructions you should follow based on the form of payment you
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
12. Any request for making full payment over time under an installment
plan should be sent to: Chief Financial Officer--Financial
Operations, Federal Communications Commission, 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 by phone, 1-877-480-3201, or by e-mail,
13. IT IS FURTHER ORDERED that a copy of this Order shall be sent by both
First Class and Certified Mail, Return Receipt Requested, to J.M.J.
Radio, Inc. at 1880 Highway 315, Pittston, Pennsylvania 18640 and to
its attorney, Stuart W. Nolan, Jr. at Legal Works Apostolate, PLLC, 4
Family Life Lane, Front Royal, Virginia 22630.
FEDERAL COMMUNICATIONS COMMISSION
G. Michael Moffitt
^ 47 C.F.R. S 73.1125(a).
^ J.M.J. Radio, Inc., Notice of Apparent Liability for Forfeiture and
Order, 25 FCC Rcd 16882 (Enf. Bur. 2010) (NAL).
^ See Opposition to Notice of Apparent Liability for Forfeiture, dated
January 2011 ("NAL Response").
^ 47 U.S.C. S 503(b).
^ 47 C.F.R. S 1.80.
^ 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), recons. denied, 15 FCC Rcd 303 (1999)
(Forfeiture Policy Statement).
^ 47 U.S.C. S 503(b)(2)(E).
^ NAL Response at 1-2.
^ Amendment of Sections 73.1125 and 73.1130 of the Commission's Rules, the
Main Studio and Program Origination Rules for Radio and Television
Broadcast Stations, Memorandum Opinion and Order, 3 FCC Rcd 5024, 5027,
para. 24 (1988), erratum issued, 3 FCC Rcd 5717 (1988) (correcting
language in n.29).
^ See, e.g., Jones Eastern of the Outer Banks, Inc., Memorandum Opinion
and Order, 6 FCC Rcd 3615, 3616, para. 9 & n.2 (1991) (noting that, "This
is not to say that the same staff person and manager must be assigned
full-time to the main studio. Rather, there must be management and staff
presence on a full-time basis during normal business hours to be
considered `meaningful.'"), clarified by, 7 FCC Rcd 6800 (1992) ("Jones
Eastern II"). See also Birach Broadcasting Corp., Notice of Apparent
Liability for Forfeiture, 25 FCC Rcd 2635 (Enf. Bur. 2010).
^ Jones Eastern II, 7 FCC Rcd at 6802.
^ See Administrative Procedure Act, 5 U.S.C. S 551 et seq. See also, e.g.,
SBC, Inc. v. FCC, 414 F.3d 486, 497-502 (3d Cir. 2005) (FCC order
interpreting existing rules regarding termination compensation for
competitive carriers was an interpretive rule exempt from the APA's notice
and comment procedures).
^ NAL Response at 4.
^ Id. JMJ reports that the Station "survives . . . via the active
involvement of its officers and other volunteers, as well as by the
efforts of volunteer staff who work simultaneously for St. Joseph Oblate
Seminary . . . and for JMJ . . . . ." Id. To the extent JMJ asks for a
declaratory ruling that station personnel need not be paid to qualify as
employees for purposes of the main studio rule, we note that there is no
requirement that either station staff or management personnel be paid
employees in order for such employees to meet the main studio staffing
^ We note that, except for Station Engineer Robert Reite, who came to the
Station on November 25, 2009, after being contacted by the agent, none of
the individuals identified by JMJ in its NAL Response as station
"employees" was present when the agent arrived at the main studio on
November 25, 2009 or December 17, 2009. See id. at 5-6. We also note that
the one individual at the Seminary with whom the agent spoke on November
25, 2009, who conceivably could have been working simultaneously for the
Station and the Seminary, clearly stated to the agent that he was not
associated with the Station and that no one associated with the Station
worked on a regular basis at the main studio. This individual's account
was also supported by statements from the Station's engineer and by one of
JMJ's Directors, both of whom admitted to the agent that the Station does
not have any designated staff. We find it unlikely that all three of these
individuals would have misinterpreted the agent's questions and neglected
to explain that the Station was run by full-time staff and management who
either worked simultaneously for the Station and the Seminary and/or
worked at the Station on an unpaid basis.
^ JMJ erroneously believes that the upward adjustment in the proposed
forfeiture amount was based, in part, on the fact that the Station had
moved its public inspection file from "its initial location at the front
desk to a more remote location elsewhere in the same building," something
it claims it did at the recommendation of the FCC agent. NAL Response at
7. As reflected in the NAL, the sole basis for the upward adjustment was
JMJ's failure to have adequate staffing at the Station's main studio on
December 17, 2009, after it had been advised to do so by the agent at the
November 25, 2009, inspection. See NAL, 25 FCC Rcd at 16884, para. 8.
^ NAL Response at 3. JMJ also argues that its history of compliance
warrants a reduction in the forfeiture. Id. Given that we are already
substantially reducing the forfeiture based on JMJ's inability to pay, we
need not reach this claim.
^ See PJB Communications of Virginia, Inc., Memorandum Opinion and Order,
7 FCC Rcd 2088 (1992) (forfeiture not deemed excessive where it
represented approximately 2.02 percent of the violator's gross revenues);
Hoosier Broadcasting Corp., Memorandum Opinion and Order, 15 FCC Rcd 8640
(2000) (forfeiture not deemed excessive where it represented approximately
7.6 percent of the violator's gross revenues); Local Long Distance, Inc.,
Order of Forfeiture, 15 FCC Rcd 24385 (2000) (forfeiture not deemed
excessive where it represented approximately 7.9 percent of the violator's
^ See 47 U.S.C. S 503(b)(2)(E) (requiring Commission to 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).
^ Kevin W. Bondy, Forfeiture Order, 26 FCC Rcd 7840 (Enf. Bur., Western
Region 2011) (holding that violator's repeated acts of malicious and
intentional interference outweigh evidence concerning his ability to pay)
(petition for reconsideration pending); Hodson Broadcasting Corp.,
Forfeiture Order, 24 FCC Rcd 13699 (Enf. Bur. 2009) (holding that
permittee's continued operation at variance with its construction permit
constituted an intentional and continuous violation, which outweighed
permittee's evidence concerning its ability to pay the proposed
forfeitures). See Michael W. Perry, Forfeiture Order, 27 FCC Rcd 2281
(2012) (reducing forfeiture based on inability to pay, but warning that
future violations of the same kind may not be reduced due to financial
^ 47 U.S.C. S 503(b); 47 C.F.R. SS 0.111, 0.204, 0.311, 0.314, 1.80(f)(4),
^ 47 C.F.R. S 1.80.
^ 47 U.S.C. S 504(a).
^ An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
^ See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 13-2067
Federal Communications Commission DA 13-2067