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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Station WCMI(AM) ) File No. EB-00-DT-779
Fifth Avenue Broadcasting Co., Inc. )
Huntington, West Virginia ) NAL/Acct. No.
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
By the District Director, Detroit Office, Enforcement Bureau:
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Fifth Avenue Broadcasting Co., Inc.
(``Fifth Avenue''), the licensee of WCMI(AM), licensed to
Ashland, Kentucky, has apparently violated Sections
73.1225(d)(1), 73.1350(a), 73.1690(b)(2), 73.3526(e)(1) and
73.3526(e)(12) of the Commission's Rules (``Rules'')1.
Respectively, these Rules require a copy of the most recent
antenna impedance measurements be made available upon request by
representatives of the FCC, WCMI(AM) be operated according to the
terms of the station authorization, a construction permit be
filed for modification of transmission system facilities, and, a
copy of the current FCC authorization and the issues/program
lists be maintained in the public inspection file. We conclude
that Fifth Avenue is apparently liable for a forfeiture in the
amount of twenty thousand dollars ($20,000).
2. On September 14, 2000, the Federal Communications
Commission's Office of the Secretary received a complaint that
Fifth Avenue had ``...re-located its AM transmission site into
another state without prior Commission authorization...'' The
complainant requested ``...immediate Commission action to require
the termination of the unauthorized and potentially dangerous
operations of WCMI(AM).'' On September 18, 2000, the Technical &
Public Safety Division of the Federal Communications Commission,
Enforcement Bureau, received a copy of this complaint, who in
turn sent a copy of the complaint via facsimile to the
Enforcement Bureau's Detroit, Michigan office. This complaint
was filed under the Commission's Ex Parte Rules.
3. On September 25, 2000, an FCC agent from the Detroit
Office arrived in Ashland, Kentucky in the late afternoon. The
agent monitored WCMI(AM) for radio transmissions but the station
was not transmitting at the time. The next day, September 26,
2000, the FCC agent conducted an inspection of WCMI(AM), WDGG(FM)
and WRVC-FM. The studios of these stations are co-located in
Huntington, West Virginia. As a result of the inspection, it was
determined that WCMI(AM) had been operating from an unauthorized
location from approximately August 18, 1999, until September 22,
2000. During the inspection, the agent also determined that Fifth
Avenue had violated Sections 73.1225(d)(1), 73.1350(a),
73.1690(b)(2), 73.3526(e)(1) and 73.3526(e)(12).
4. On November 20, 2000 a Notice of Violation (``NOV'')
was issued to Fifth Avenue regarding WCMI(AM). On December 4,
2000, a request for an extension of time to reply to the NOV was
received from Susan A. Marshall, the attorney representing Fifth
Avenue. The extension was granted, and on December 12, 2000, the
FCC received a written response.
5. Based on the evidence before us, we find that Fifth
Avenue willfully2 and repeatedly3 violated Sections
73.1225(d)(1), 73.1350(a), 73.1690(b)(2), 73.3526(e)(1) and
73.3526(e)(12) of the Rules by failing to maintain records,
failing to operate WCMI(AM) according to the terms of the station
authorization by constructing and operating from an unauthorized
location, failing to file the required forms or information and
failing to maintain the public inspection file. 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'')4, sets the base forfeiture amount at $10,000
for operating beyond the terms of the station authorization,
$4,000 for construction at an unauthorized location, $1,000 for
failure to maintain records, $3,000 for failure to file the
required forms or information and $10,000 for failure to maintain
the public inspection file. In assessing the monetary forfeiture
amount, we must take into account the statutory factors set forth
in Section 503(b)(2)(D) of the Act,5 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 Fifth Avenue has
previously had an overall history of compliance and showed good
faith surrounding the violations by the voluntary disclosure of
information; however, the violations are egregious. Applying the
Policy Statement and the statutory factors to the instant case
and applying the inflation adjustments, we believe that a twenty
thousand dollar ($20,000) monetary forfeiture is warranted.
IV. Ordering Clauses
6. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act6 and Sections 0.111, 0.311 and 1.80 of the
Rules7, Fifth Avenue Broadcasting Co., Inc. is hereby NOTIFIED of
its APPARENT LIABILITY FOR A FORFEITURE in the amount of twenty
thousand dollars ($20,000) for willfully and repeatedly violating
Sections 73.1225(d)(1), 73.1350(a), 73.1690(b)(2), 73.3526(e)(1)
and 73.3526(e)(12) of the Rules by failing to maintain required
records, failing to operate according to the terms of the station
authorization, modifying the transmission facilities without
authorization, failing to file the required forms, and failing to
maintain the public inspection file.
7. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of
the Commission's Rules, within thirty days of the release date of
this NOTICE OF APPARENT LIABILITY, Fifth Avenue SHALL PAY the
full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
8. 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. 200132360003.
9. 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. 200132360003.
10. 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
11. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Revenue and Receivables Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.8
12. IT IS FURTHER ORDERED THAT this NOTICE OF APPARENT
LIABILITY shall be sent by Certified Mail, Return Receipt
Requested, to Fifth Avenue Broadcasting Co., Inc., 401 11th
Street, Suite 200, Huntington, West Virginia 25701, to counsel
for Fifth Avenue, Susan A. Marshall, Fletcher, Heald & Hildreth,
P.L.C., 1300 N. 17th Street, 11th Floor, Arlington, VA 22209, and
to counsel for Clear Channel Broadcasting Licenses, Inc., Marissa
G. Repp and F. William LeBeau, Hogan & Hartson L.L.P., 555
Thirteenth Street, NW, Washington, DC 20004-1109.
James A. Bridgewater
47 C.F.R. §§ 73.1225(d)(1), 73.1350(a), 73,1690(b)(2),
73.3526(e)(1) and 73.3526(e)(12).
2 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).
3 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.
447 C.F.R. § 1.80.
5 47 U.S.C. § 503(b)(2)(D).
6 47 U.S.C. § 503(b).
7 47 C.F.R. §§ 0.111, and 0.311.
8 See 47 C.F.R. § 1.1914.