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


                              )
In the Matter of                   )    File No. EB-98-TP-241
                              )    
WGUL-FM, Inc.                 )    NAL/Acct. No.  815TP0004 
Inverness, Florida                 )
                              
                                     
                  MEMORANDUM OPINION AND ORDER


   Adopted:  November 29, 2000          Released:    December  5, 

2000

By the Commission:

     1.   In this Order, we  grant in part and  deny in part  the 

May 19,  2000  application for  review  filed by  WGUL-FM,  Inc., 

licensee of  Station  WINV(AM),  of the  Memorandum  Opinion  and 

Order1 issued  by  the  Enforcement Bureau  in  this  proceeding.  

Pursuant to Section 503(b) of the Communications Act of 1934,  as 

amended (``the Act'')2 and Section 1.80 of the Commission's Rules 

(``the Rules'')3  the former  Compliance and  Information  Bureau 

("CIB") found WGUL-FM, Inc. liable  for a monetary forfeiture  in 

the amount of $7,000 for willful and continuous violation of rule 

sections 11.52(d)4  (EAS  code and  attention  signal  monitoring 

requirements),  11.61(a)5   (tests   of  EAS   procedures),   and 

73.3526(c)6 (availability of  public inspection  file for  public 

inspection).  For  the  reasons  discussed below,  we  lower  the 

forfeiture to $5,000.  

                           BACKGROUND

     2.   In response  to  a complaint  concerning  unintentional 

emissions,  the  Tampa  Florida  Field  Office  ("Field  Office") 

inspected  WINV(AM)'s  operating   facilities.   The   inspection 

revealed the aforementioned violations.   On March 31, 1998,  the 

Field Office issued an Official  Notice of Violation ("NOV")  for 

the violations.  On April 14,  1998, the Field Office received  a 

written response to the NOV  from Carl J. Marcocci, Chairman  and 

CEO of WGUL-FM, Inc.  Mr. Marcocci acknowledged the technical and 

operational deficiencies that led to the violations.  

     3.   On June 1,  1998, the  District Director  of the  Tampa 
Field Office issued  a Notice  of Apparent  Liability ("NAL")  to 
WGUL-FM, Inc. in the amount of $10,000 for willful and continuous 
violation of  Sections  11.52(d),  11.61(a),  73.1590(a)(6)7  and 
73.3526(c) of  the  Rules.  WGUL-FM,  Inc.  filed a  Request  for 
Remission or Reduction  of Forfeiture.  CIB  issued a  Forfeiture 
Order8 for three of the violations and ruled that the  forfeiture 
attributable to the Section 73.1590(a)(6) violation for equipment 
performance measurements  should be  eliminated.  Therefore,  the 
Forfeiture Order reduced the forfeiture amount to $7,000  instead 
of the  originally proposed  $10,000.  A  Memorandum Opinion  and 
Order released  on  April 21,  2000  affirmed the  forfeiture  on 
reconsideration. 

     4.   In its  application  for review,  WGUL-FM,  Inc.  again 
argues that the forfeiture should be remitted or further reduced.  
Regarding the violation of Section 11.52(d), WGUL-FM, Inc. argues 
that, although  one  of  its  required  EAS  sources  located  in 
Gainesville, Florida was not being  monitored, there was no  risk 
to the  listeners  of  WINV(AM) because  it  was  monitoring  the 
National Weather Service.  WGUL-FM, Inc. further relies on a news 
release issued by CIB on November  30, 1998 that stated that  the 
FCC would not begin its  [EAS] inspection program until  February 
1, 1999.9  Consequently, it claims there should be no  forfeiture 
for violation of Section 11.52(d) of the Rules.  It also contends 
that by rejecting WGUL-FM, Inc.'s reliance upon the news release, 
the Enforcement Bureau approved a  scheme by which stations  were 
given two  months to  come into  compliance with  EAS  standards, 
except for those stations which  were caught violating the  rules 
before the  warning  was  given.   This,  states  WGUL-FM,  Inc., 
contravenes the "equal  treatment" requirement  of Melody  Music, 
Inc. v. FCC.10  Finally, WGUL-FM, Inc. argues that the portion of 
the forfeiture assessed for not having the public file  available 
for inspection  should  be rescinded  because  the owner  of  the 
Citrus Hearing Center,  the establishment that  housed the  file, 
inexplicably decided to close the afternoon of the inspection and 
ignored a request by  WINV(AM)'s licensee to  return in order  to 
allow inspection  of  the  file.11  WGUL-FM,  Inc.  asserts  that 
because this was  a one-time  violation and  because it  promptly 
moved the public inspection file to the public library, reduction 
or remission is warranted.

     5.   WGUL-FM, Inc. requests the  Commission to consider  its 
history with WINV(AM). WGUL-FM, Inc. had been operating  WINV(AM) 
pursuant to a  local marketing  agreement prior  to becoming  the 
licensee and was responsible for its resumption of operation  one 
day before the license would have expired by operation of Section 
312(g) of  the  Act.12  Through the  efforts  of  WGUL-FM,  Inc., 
WINV(AM) obtained special temporary  authority to operate with  a 
temporary tower lower  than that authorized,  filed a  late-filed 
application for renewal of its license, filed an application  for 
assignment of license to WGUL-FM, Inc., and filed an  application 
for change in city of license.  Finally, WGUL-FM, Inc. points out 
that it had only been the licensee for about two months prior  to 
the inspection,13 and even  then was the  licensee subject to  an 
outstanding appeal of  the grant  of the  assignment and  renewal 
applications.14                

                           DISCUSSION

     6.   Section 73.3526(c)  of the  Rules requires  the  public 
inspection file to be made available for public inspection at any 
time during regular business hours.  In this case, while the file 
was not  available  at  the  time of  inspection,  and  thus  the 
licensee violated  the  rule,  we conclude  that  the  forfeiture 
should be lowered to reflect the licensee's good faith efforts to 
comply with  the  rule.  We  have  no reason  to  disbelieve  the 
licensee's statement that the closure of the building housing the 
public file on the day at  issue was "[i]nexplicable" or that  it 
promptly attempted to get  the building open.   We believe it  is 
appropriate to lower the overall forfeiture by $2,000 to  reflect 
the licensee's good faith efforts to comply.15 

     7.   Pursuant to the State of Florida EAS Operational  Plan, 
WINV(AM) is required to monitor WRUF(AM/FM) and WOGK-FM.  At  the 
time of the inspection, neither  was being monitored. This was  a 
violation of Section 11.52(d) of  the Rules.  As the  Enforcement 
Bureau determined, WINV(AM)'s monitoring of other sources and the 
licensee's  opinion   regarding  potential   risk  to   listeners 
resulting from its failure to monitor the assigned sources is not 
a basis for lowering the forfeiture.  

     8.   WGUL-FM, Inc.'s  reliance upon  the November  30,  1998 
news release to support its  position that its forfeiture  should 
be remitted  is  unpersuasive.   Agents  from  the  Tampa  Office 
inspected WINV(AM) as a result of a complaint about unintentional 
emissions.   The  inspection  took  place  on  March  25,   1998, 
approximately eight months  before the  news release.    Although 
the news release says  that no EAS  inspections would take  place 
between November 30, 1998  and February 1,  1999, nothing in  the 
news release suggested  that EAS violations  discovered prior  to 
February 1, 1999 (let alone, as here, prior to November 30, 1998) 
would be  overlooked  if they  were  found during  an  inspection 
conducted for some other purpose, as was the case here.  The  EAS 
inspection program discussed in the news release was prospective.  
It was intended  to warn licensees  of upcoming EAS  inspections, 
and provided  a  two-month  window for  licensees  then  in  non-
compliance to come into compliance.  It never mentioned licensees 
who had already been inspected, nor did it imply that other types 
of inspections  would not  be done  or that  previous  violations 
would be waived.  

     9.   Further,  WGUL-FM,   Inc.   argues  that   the   "equal 
treatment" requirement of  Melody Music was  violated because  it 
was treated differently than other  licensees who were warned  of 
the upcoming EAS  inspections.  This is  not the case.   WGUL-FM, 
Inc. was warned of  the upcoming EAS  inspections, just like  all 
other licensees.  It, like all other licensees, was told that the 
EAS inspections would not begin  until February 1, 1999 and  from 
the date of the news  release through February 1, 1999,  WGUL-FM, 
Inc. was not  inspected.  Thus, it  was treated the  same as  all 
other licensees.  That it was  inspected eight months before  the 
news release as a result of a complaint unrelated to EAS and  EAS 
violations were discovered  means that WGUL-FM  is not  similarly 
situated with  licensees  who had  not  been sanctioned  for  EAS 
violations during an amnesty period  taking place in the  future.  
For the  "equal  treatment" requirement  of  Melody Music  to  be 
applicable, all relevant licensees have to be similarly situated.  
WGUL-FM, Inc. is different than other licensees receiving the EAS 
compliance warning because  it had  already been found  to be  in 
violation of the EAS  rules.  It could not  have relied, and  did 
not rely, on  the subsequent public  notice.  Thus, Melody  Music 
does not require  the portion of  the forfeiture attributable  to 
the EAS violations to be rescinded.

     10.  Finally, WGUL-FM Inc.'s efforts to bring WINV(AM)  into 
compliance  with  various  Commission  rules  prior  to  becoming 
WINV(AM)'s licensee are not a  basis for reducing the  forfeiture 
assessed for violations discovered after WGUL-FM, Inc. became the 
licensee.            

                        ORDERING CLAUSES

     11.  ACCORDINGLY, IT IS  ORDERED that,  pursuant to  Section 

1.115(c) of  the Rules,  47  C.F.R. 1.115(c),  WGUL-FM,  Inc.'s 

application for review  of the Memorandum  Opinion and Order  for 

NAL No. 815TP0004 IS GRANTED IN PART AND DENIED IN PART.

     12.  IT IS FURTHER ORDERED that, pursuant to Section  503(b) 

of the Act, 47 U.S.C. 503(b), and Section 1.80 of the Rules, 47 

C.F.R. 1.80, WGUL-FM, Inc. must pay the amount of five thousand 

dollars ($5,000) within thirty (30)  days of the release date  of 

this Order.  Payment may be made  by check or money order,  drawn 

on  a  U.S.  financial   institution,  payable  to  the   Federal 

Communications Commission.16   The  remittance should  be  marked 

``NAL Acct. No. 815TP0004'' and mailed to the following address:

               Federal Communications Commission
               P.O. Box 73482
               Chicago, Illinois 60673?7482

Forfeiture penalties not paid within 30 days will be referred  to 

the U.S.  Attorney for  recovery in  a civil  suit. 47  U.S.C.   

504(a).

     13.  IT IS FURTHER ORDERED that  a copy of this Order  shall 

be sent by certified mail, return?receipt requested, to  WGUL-FM, 

Inc. in care of its counsel of record, Koerner & Olender, P.C., 3 

Bethesda Metro Center, Suite 640, Bethesda, MD 20814.
  
                              FEDERAL COMMUNICATIONS COMMISSION

  

                              Magalie Roman Salas
                              Secretary
_________________________

     1   15 FCC Rcd 11,163 (Enf. Bur. 2000).

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

     3   47 C.F.R. 1.80.

     4   47 C.F.R. ' 11.52(d).

     5   47 C.F.R. ' 11.61(a).
       
     6   47 C.F.R. ' 73.3526(c).   

     7  47 C.F.R. ' 73.1590(a)(6).    
     8   14 FCC Rcd 6106 (Compl. & Inf. Bur. 1999).    

     9   News  Release,  FCC  to  Increase  Enforcement  of   EAS 
Regulations, Report No. CI 98-26, released November 30, 1998.

     10   345 F.2d 730 (DC Cir. 1965).        

     11  At the time of the inspection, licensees were  permitted 
to have the main  studio located at  any accessible place  within 
the community of license.  With  the public inspection file  rule 
change, effective October 30, 1998, licensees are now required to 
keep the public inspection file at the station's main studio.      
     12
       If  a broadcasting  station  fails to  transmit  broadcast 
signals for  any consecutive  12-month period,  then the  station 
license granted  for  the  operation of  that  broadcast  station 
expires at the end of that period, notwithstanding any provision, 
term, or condition of the license  to the contrary.  47 U.S.C.  ' 
312(g).
     13
       The assignment to WGUL-FM, Inc. was consummated on January 
9, 1998, approximately two months before the inspection. 
     14
       The applications  for renewal and  assignment, as well  as 
the application for change in city of license, were contested  by 
Dickerson  Broadcasting,  Inc.,  licensee  of  Station   WEAG-FM, 
Starke,  Florida.    Dickerson's  application   for  review   was 
dismissed on December 14, 1998.  See 14 FCC Rcd 2032 (1998).   

     15  See  The Commission's  Forfeiture Policy  Statement  and 
Amendment of  Section  1.80  of  the  Rules  to  Incorporate  the 
Forfeiture Guidelines, 12 FCC  Rcd 17087, at 17100-17101  (1997), 
recon. denied,  13 FCC Rcd 303 (1999), released December 28, 1999 
(factors for downward adjustments).  
     16  Payment  of  the  forfeiture  in  installments  may   be 
considered as a separate matter in accordance with Section 1.1914 
of the Rules, 47 C.F.R. ' 1.1914.  Requests for installment plans 
should be mailed to:  Chief,  Credit and Debt Management  Center, 
445 Twelfth Street, S.W., Washington, D.C.  20554.