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

In the Matter of                 )
                                )       File Number: EB-02-BS-
FNX Broadcasting, LLC.           )       114
WPHX                             )
Sanford, Maine                   )
                                )       NAL/Acct. No. 
                                ) 200332260001

                                        FRN: 0004 0757 35


                                        Released:  October 29, 

By the District Director, Boston Office, Enforcement Bureau:

                        I.  INTRODUCTION

     1.   In this  Notice of  Apparent Liability  for  Forfeiture 
(``NAL''),  we  find  that  FNX  Broadcasting,  LLC.   (``FNX''), 
licensee of radio station  WPHX has apparently violated  Sections 
73.1125, and 73.3526(b) of the Commission's Rules and Regulations 
(``Rules'')1, by failing to staff the main studio, and by failing 
to maintain the public  inspection file at  the main studio.   We 
conclude that  FNX is  apparently liable  for forfeiture  in  the 
amount of seventeen thousand dollars ($17,000).

                         II.  BACKGROUND

     2.   On May  14, 2002,  District Director  Vincent  Kajunski 
from the Commission's Boston Office inspected Radio Station  WPHX 
in Sanford, Maine.  Unable to  locate the station's main  studio, 
Agent Kajunski called  the station's local  telephone number  and 
spoke with Michael Waggoner, General Manager of the station.  Mr. 
Waggoner  stated   that  the   main  studio   was  unmanned   and 
arrangements were made to meet at the main studio.  While at  the 
studio, Mr. Waggoner  stated that  the main studio  had not  been 
staffed since several months after  FNX purchased the station  in 

     3.   While on the phone with Mr. Waggoner, he informed agent 
Kajunski that the station's public inspection file was located at 
the City of Sanford Public Library.  The library had no knowledge 
of WPHX's public inspection file.   When Mr. Waggoner arrived  at 
the main studio, he had the  public inspection file with him  and 
admitted that they  were maintaining  the file  at the  station's 
Portland, Maine office.  Inspection  of the public file  revealed 
that the  most recent  Issues-Programs File  was dated  September 

     4.   On August 2, 2002, agent Kajunski of the Boston  Office 
issued an  Official  Notice of  Violation  (``NOV'') to  FNX  for 
violations found during  the May  14, 2002,  inspection. The  NOV 
issued to FNX included the non-compliance with Sections  73.1125, 
73.3526(b), and 73.3526(e)(12)2 of the Rules. 

     5.   On August  26,  2002,  the  Boston  Office  received  a 
response from FNX.  FNX acknowledged in its response that it  had 
failed to comply with both the Commission's main studio  staffing 
and public inspection file requirements, and detailed  corrective 
steps that it had taken to eliminate the violations.

                      III.      DISCUSSION

     6.   Section 73.1125 of  the Rules  requires each  broadcast 
station to maintain a main  studio.  In adopting the main  studio 
rules,  the   Commission  explicitly   informed  permittees   and 
licensees that  compliance with  the main  studio rules  requires 
maintenance of a meaningful and management presence.

     The Commission  defined  ``meaningful presence''  in  a 
     decision dated June  19, 1991, 6  FCC Rcd 3615  (1991).  
     In paragraph 9 of the decision it states that ``a  main 
     studio  must,   at   a  minimum,   maintain   full-time 
     managerial and full-time  personnel''.  Note  2 of  the 
     decision continues to state that  ``this is not to  say 
     that the same staff person and manager must be assigned 
     full-time  to  the  studio.   Rather,  there  must   be 
     management and  staff  presence on  a  full-time  basis 
     during  normal   business   hours  to   be   considered 

At the time of inspection, there was no station staff present  or 
assigned to the main studio.

     7.   Section 73.3526(b) of the  Rules requires a station  to 
maintain their public inspection file at the main studio.  At the 
time  of  inspection,  the  public  inspection  file  was   being 
maintained at the station's Portland, Maine office.

     8.   Based on  the  evidence before  us,  we find  that  FNX 
willfully3  and  repeatedly4   violated  Sections  73.1125,   and 
73.3526(b) of the rules by failing to staff the main studio,  and 
failing to  maintain  the  public inspection  file  at  the  main 
studio.  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'')5, 
sets the base forfeiture  amount at $7,000  for failure to  staff 
the main studio, and  the base amount at  $10,000 for failure  to 
maintain the  public  inspection file  at  the main  studio.   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 (``Act''), as amended,6  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 FNX does  have an overall  history of compliance.   However, 
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 a  seventeen 
thousand dollar ($17,000) monetary forfeiture is warranted. 

                      IV.  ORDERING CLAUSES

     9.   Accordingly, IT IS  ORDERED THAT,  pursuant to  Section 
503(b) of the  Act7, and Sections  0.111, 0.311 and  1.80 of  the 
Rules8, FNX Broadcasting, LLC. is hereby NOTIFIED of its APPARENT 
LIABILITY FOR  FORFEITURE in  the  amount of  seventeen  thousand 
dollars ($17,000) for willful and repeated violation of  Sections 
73.1125, and 73.3526(b) of the Rules.

     10.  IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of 
the Rules, within thirty days of the release date of this  NOTICE 
amount of  the  proposed  forfeiture  or  SHALL  FILE  a  written 
statement seeking  reduction  or  cancellation  of  the  proposed 

     11.  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. 200332260001 and FRN: 0004075735

     12.  The  response,  if  any,  must  be  mailed  to  Federal 
Communications Commission,  Office  of the  Secretary,  445  12th 
Street, SW,  Washington,  DC  20554,  Attn:  Enforcement  Bureau-
Technical  &  Public  Safety  Division,  and  MUST  INCLUDE   THE 
NAL/Acct. No. 200332260001.

     13.  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 

     14.  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. 9 

     15.  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.   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   questions 
regarding any  of  the  information contained  in  Attachment  A, 
please contact OCBO at (202) 418-0990.

     16.  IT IS FURTHER  ORDERED THAT  a copy of  this NOTICE  OF 
APPARENT LIABILITY  shall  be  sent  by  Certified  Mail,  Return 
Receipt Requested, to FNX Broadcasting, LLC., c/o Rubin, Winston, 
Kiericks, ET AL, 1155 Connecticut Ave., Washington, DC 20036.

                              FEDERAL COMMUNICATIONS COMMISSION

                              Vincent F. Kajunski
                              District Director
                              Boston Office


1 47 C.F.R.  73.1125, and 73.3526(b).

2 47 C.F.R.  73.3526(e)(12)

3 Section 312(f)(1) of the Act, 47 U.S.C.  312(f)(1), which 
applies to Section 503(b) of the Act, provide that       ``the 
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).

4 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.

547 C.F.R.  1.80(b)(4).

6 47 U.S.C.  503(b)(2)(D).

7 47 U.S.C.  503(b)

8 47 C.F.R.  0.111, 0.311, 1.80.

9  See 47 C.F.R.  1.1914.