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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. ) 185
WPHX-FM )
Sanford, Maine )
)
) NAL/Acct. No.
) 200332260002
FRN: 0004 0757 35
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: October 29,
2002
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-FM 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-
FM 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
1999.
3. While on the phone, Mr. Waggoner 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-FM'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 Inspection File
revealed that the most recent Issues-Programs File was dated
September 2001.
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
meaningful.''
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
OF APPARENT LIABILITY, FNX Broadcasting, LLC. SHALL PAY the full
amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
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. 200332260002 and FRN: 0004 0757 35.
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. 200332260002.
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
submitted.
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.