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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-02-DT-397
Melodynamic Broadcasting Corporation )
Radio Station WCER ) NAL/Acct. No.
200332360003
Canton, Ohio )
) FRN: 0007-96-0818
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: December
30, 2002
By the District Director, Detroit Office, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Melodynamic Broadcasting Corporation,
(?Melodynamic?), licensee of radio station WCER, Canton, Ohio, has
apparently violated Sections 1.89(b), 11.15, 73.51(d),
73.51(e)(2), 73.1225(d)(1), 73.1350(c)(1), 73.1560(a)(1), 73.1745
and 73.1870(b)(3) of the Commission's Rules (?Rules?)1.
Respectively, these sections require that the station respond to
Commission communications; maintain a copy of the Emergency Alert
System (EAS) handbook; maintain a record of the dates of
commencement and termination of power determination by the
indirect method; maintain a record of the efficiency factor F for
each mode of operation; make available the record of the most
recent antenna impedance measurements; monitor and establish
monitoring procedures and schedules to determine compliance with
operating power; operate with power not in excess of 105% of the
authorized power; operate at times, or with modes or power,
specified and made a part of the license; and maintain a written
designation of the chief operator. We conclude that Melodynamic
is apparently liable for a forfeiture in the amount of eleven
thousand dollars ($11,000).
II. BACKGROUND
2. On April 6, 2000, agents from the Commission's Detroit
Office monitored and made field strength measurements of WCER
based on confidential complaints indicating that WCER was
operating with power in excess of that authorized both during
daytime and nighttime hours. On April 7, 2000, the agents
monitored, made field strength measurements and conducted an
inspection of WCER. The agents found violations of FCC Rules,
including failure to have a copy of the most recent antenna
impedance measurements, failure to make notations in the station
logs indicating the dates of commencement and termination of
measurements using the indirect method of power determination,
failure to switch to nighttime power at the correct time, failure
to establish monitoring procedures and schedules to determine
compliance with Section 73.1560 regarding operating power levels
and AM mode of operation, and failure to maintain a record of the
value of the efficiency factor F for each mode of operation.
3. On June 27, 2000, the Detroit Office issued a Notice of
Violation (?NOV?) for eleven rule violations to Melodynamic, and
received a written response, dated July 12, 2002, which did not
adequately address all the violations.
4. On August 7, 2000, the Detroit Office issued a
Continuation of Notice of Violation to Melodynamic requesting
additional information regarding eight of the eleven items in the
Notice of Violation, and received no response.
5. On October 30, 2000, the Detroit Office sent a Warning
via certified mail for failure to respond to the Continuation of
Notice of Violation with a corrected copy of the Continuation of
Notice of Violation attached. The correction was for a
typographical error in the spelling of ?Continuation? in the
heading only, and again received no response.
6. The Detroit Office received more confidential
complaints indicating that WCER was continuing to operate with
power in excess of that authorized during daytime and nighttime
hours. On June 20, 2002 and June 21, 2002, agents from the
Detroit Office monitored and made field strength measurements of
WCER prior to and after sunset. During the monitoring periods on
June 20 and 21, 2002, no power level changes occurred during
daytime and nighttime operation modes. At all times throughout
the monitoring period, the field strength measurements taken by
the agents indicated that WCER was operating above 105% of the
power during daytime and nighttime operation.
7. On June 21, 2002, the agents conducted an inspection of
WCER. They made field strength measurements at the same time
they observed the transmitter operating power. Using the
indirect method of power determination, the agents determined
that the station was operating with a transmitter output power of
approximately 210 % (1053 watts) of the authorized daytime power
of 500 watts and approximately 1,404% (1053 watts) of the
authorized nighttime power of 75 watts. The station could not
produce a record of the efficiency factor F used to determine the
operating power for each mode of operation. The only record
available was a general specification sheet from the manufacturer
indicating an efficiency factor of 85% or better. The agents
also determined that station personnel were not monitoring the
station's operating power. The station personnel did not know
how to determine the operating power, and the preset nighttime
and daytime power switches were set for power levels in excess of
the authorized power levels.
8. As a result of the monitoring, field strength
measurements, and inspection of WCER, the agents found thirteen
violations of FCC Rules, including failure to maintain a copy of
the Emergency Alert System (EAS) Operating Handbook, failure to
make notations in the station logs indicating the dates of
commencement and termination of measurements using the indirect
method of power determination, failure to maintain a record of
the efficiency factor F for each mode of operation, failure to
have a copy of the most recent antenna impedance measurements,
failure to establish monitoring procedures and schedules to
determine compliance with Section 73.1560 regarding operating
power levels and AM mode of operation, operation with power in
excess of 105% of the authorized power both during daytime and
nighttime operation, failure to switch to nighttime power, and
failure to designate a chief operator in writing.
9. On July 18, 2002, the FCC's Detroit Office issued a
Notice of Violation to Melodynamic for the thirteen FCC Rule
violations. The Detroit Office received no reply.
10. On October 3, 2002, the FCC's Detroit Office issued a
Warning via certified mail for failure to reply to the Notice of
Violation dated July 18, 2002. A copy of the July 18, 2002
Notice of Violation was attached. The Detroit Office received no
reply.
III. DISCUSSION
11. Section 1.89(b) of the Rules requires a written answer
to a Notice of Violation. Section 11.15 requires that a copy of
the Emergency Alert System (EAS) handbook be located at the
normal duty position or EAS equipment location. Section 73.51(d)
requires that a notation be made in the station log indicating
the dates of commencement and termination of measurement using
the indirect method of power determination. Section 73.51(e)(2)
requires that a record of the efficiency factor ?F? for each mode
of operation be kept in the station records. Section
73.1225(d)(1) requires that AM stations must make a copy of the
most recent antenna impedance measurements available upon request
by FCC representatives. Section 73.1350(c)(1) requires that the
licensee establish monitoring procedures and schedules for the
station to comply with Section 73.1560 regarding operating power
and AM mode of operation. Section 73.1560(a)(1) requires that a
station not operate in excess of 105% of the authorized power.
Section 73.1745 requires that the station not operate at times,
or with modes or power other than those specified and made a part
of the license. Section 73.1870(b)(3) requires that the
designation of the chief operator be in writing and be posted
with the station license.
12. Based on the evidence before us, we find that
Melodynamic willfully1 and repeatedly2 violated Section 1.89(b)
for failure to respond to Commission communications; Sections
11.15, 73.51(d), 73.51(e)(2), 73.1225(d)(1), and 73.1870(b)(3)
for failure to maintain required records; Section 73.1350(c)(1)
for failure to make required measurements or conduct required
monitoring regarding operating power and AM mode of operation;
and Sections 73.1560(a)(1) and 73.1745 for operating with power
in excess of 105% of the authorized power during daytime and
nighttime operation. The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to
Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087, 17113
(1997), recon. denied, 15 FCC Rcd 303(1999) (?Forfeiture Policy
Statement?)3, sets the base forfeiture amount at $4,000 for
failure to respond to Commission communications, $1,000 for
failing to maintain required records, $2,000 for failure to make
required measurements or conduct required monitoring, and $4,000
for exceeding power limits. In assessing the monetary forfeiture
amount, we must take into account the statutory factors set forth
in Section 503(b)(2)(D) of the Communications Act of 1934,4 as
amended, (?Act?), which include 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. The
record reveals that Melodynamic has a history of non-compliance,
including a repeat of these violations from prior inspections and
the violations are egregious. Applying the Forfeiture Policy
Statement and the statutory factors to the instant case and
applying the inflation adjustments, we believe that an eleven
thousand dollar ($11,000) monetary forfeiture is warranted.
IV. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act and Sections 0.111, 0.311 and 1.80 of the
Rules5, Melodynamic Broadcasting Corporation is hereby NOTIFIED
of its APPARENT LIABILITY FOR A FORFEITURE in the amount of
eleven thousand dollars ($11,000) for willful and repeated
violation of Sections 1.89(b), 11.15, 73.51(d), 73.51(e)(2),
73.1225(d)(1), 73.1350(c)(1), 73.1560(a)(1), 73.1745 and
73.1870(b)(3) of the Rules.
14. 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, Melodynamic SHALL PAY
the full amount of the proposed forfeiture or SHALL FILE a
written statement seeking reduction or cancellation of the
proposed forfeiture.
15. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note the
NAL/Acct. No. 200332360003, FRN: 0007-96-0818.
16. The response, if any, must be mailed to Federal
Communications Commission, Enforcement Bureau, Technical and
Public Safety Division, 445 12th Street, S.W., Washington, D.C.
20554 and MUST INCLUDE the NAL/Acct. No. 200332360003, FRN:
0007-96-0818.
17. 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.
18. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Federal Communications Commission, Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W., Washington,
D.C. 20554.6
19. Under the Small Business Paperwork Relief Act of 2002,
Pub L. No. 107-198, 116 Stat. 729 (June 28, 2002), the FCC is
engaged in a two-year tracking process regarding the size of
entities involved in forfeitures. If you qualify as a small
entity and if you wish to be treated as a small entity for
tracking purposes, please so certify to us within thirty (30)
days of this NAL, either in your response to the NAL or in a
separate filing to be sent to the Technical and Public Safety
Division, Enforcement Bureau, Federal Communications Commission,
445 12th Street S.W., Washington, D.C. 20554. Your certification
should indicate whether you, including your parent entity and its
subsidiaries, meet one of the definitions set forth in the list
provided by the FCC's Office of Communications Business
Opportunities (OCBO) set forth in Attachment A of this Notice of
Apparent Liability. This information will be used for tracking
purposes only. Your response or failure to respond to this
question will have no effect on your rights and responsibilities
pursuant to Section 503(b) of the Communications Act. If you
have any questions regarding any of the information contained in
Attachment A, please contact OCBO at (202) 418-0990
20. IT IS FURTHER ORDERED THAT this NOTICE OF APPARENT
LIABILITY shall be sent by First Class and Certified Mail, Return
Receipt Requested, to Melodynamic Broadcasting Corporation, 4537
22nd Street NW, Canton, Ohio 44708.
FEDERAL COMMUNICATIONS
COMMISSION
James A. Bridgewater
District Director
Detroit Office, Enforcement
Bureau
Attachment A - FCC List of Small Entities, October 2002
_________________________
1 47 C.F.R. §§ 1.89(b), 11.15, 73.51(d), 73.51(e)(2),
73.1225(d)(1), 73.1350(c)(1), 73.1560(a)(1), 73.1745 and
73.1870(b)(3)
1 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to Section 503(b) of the Act, provides that ?[t]he term
`willful', when used with reference to the commission or omission
of any act, means the conscious and deliberate commission or
omission of such act, irrespective of any intent to violate any
provision of this Act ?.? See Southern California Broadcasting
Co., 6 FCC Rcd 4387 (1991).
2 Section 312(f)(2), which also applies to Section 503(b),
provides: [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.
347 C.F.R. § 1.80.
4 47 U.S.C. § 503(b)(2)(D).
5 47 C.F.R. §§ 0.111, and 0.311.
6 See 47 C.F.R. § 1.1914.