Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-01-DT-657
J4 Broadcasting of Cincinnati, Inc. )
WCIN(AM) ) NAL/Acct. No.
200232360007
Cincinnati, Ohio )
) FRN: 0004-2892-60
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: June 20,
2002
By the District Director, Detroit Office, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that J4 Broadcasting of Cincinnati, Inc., (?J4?),
the licensee of radio station WCIN (?WCIN?), Cincinnati, Ohio, has
apparently violated Sections 73.51(e)(2) and 73.1560(a)(1) of the
Commission's Rules (?Rules?)1. Respectively, these sections
require the station maintain a record of the efficiency factor ?F?
in the station records and operate with power not in excess of
105% of the authorized power. We conclude that J4 is apparently
liable for a forfeiture in the amount of five thousand dollars
($5,000).
II. BACKGROUND
2. On September 19, 2000 the Federal Communications
Commission received a confidential complaint indicating that WCIN
was operating with power in excess of that authorized during
daytime and nighttime hours.
3. On September 26, 2000, an agent from the FCC's Detroit
Office monitored and made field strength measurements of WCIN.
On September 27, 2000, the agent again made field strength
measurements and then inspected radio station WCIN. Violations
were found that included failure to have a record of the
efficiency factor ?F? used to determine the operating power and
operating with power in excess of 105% of the authorized daytime
and nighttime power limit.
4. On November 27, 2000, a Notice of Violation (?NOV?) for
sixteen rule violations was issued to J4 and on December 7, 2000
the Detroit Office received a written response with additional
information received from J4 on December 26, 2000.
5. On November 7, 2001, the Detroit Office received
another confidential complaint indicating that WCIN was operating
with power in excess of that authorized.
6. On January 16, 2002, agents monitored and made field
strength measurements both prior to and after sunset, of WCIN.
The next day, January 17, 2002, agents again made field strength
measurements both prior to and after sunrise, and inspected radio
station WCIN. The agents found that the station was operating
pursuant to an expired Special Temporary Authorization (?STA?).
The STA authorized WCIN to operate with a daytime non-directional
power of 250 watts and a nighttime non-directional power of 15
watts. During the monitoring periods on January 16th and 17th,
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 WCIN was operating above 105% of the power
during daytime and nighttime operation. Using the indirect
method of power determination, the station was operating at
approximately 828% (2070 watts) of the daytime power of 250 watts
and approximately 13,800% (2070 watts) of the nighttime power of
15 watts indicated in the most recent expired STA that expired on
December 13, 2001. Additionally, the station did not have a
record of the efficiency factor ?F? used to determine the operating
power, station personnel were not monitoring the station's
operating power and, the station personnel did not know how to
determine the station's operating power or how to properly switch
to nighttime power.
7. On January 22, 2002, J4 sent a letter to the Detroit
Office addressing some of the violations reported to J4 at the
time of inspection.
8. On March 22, 2002, a NOV for fourteen rule violations
was issued to J4 and on April 5, 2002 the Detroit Office received
a written response, indicating corrective actions they were
taking.
III. DISCUSSION
9. Section 73.51(e)(2) requires that a record of the
efficiency factor ?F? be kept in the station records. Section
73.1560(a)(1) requires that a station not operate in excess of
105% of the authorized power.
10. Based on the evidence before us, we find that J4
willfully1 and repeatedly2 violated Section 73.51(e)(2) for
failing to keep a record of the efficiency factor ?F? in the
station records and Section 73.1560(a)(1) for operating with
power in excess of 105% of the authorized power. 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 $1,000 for failing to maintain a record of the efficiency
factor ?F? in the station records (required records), and $4,000
for operating with power in excess of 105% of the authorized
power (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 J4 has previously
had 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 a five thousand dollar ($5,000)
monetary forfeiture is warranted.
IV. ORDERING CLAUSES
11. 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, J4 Broadcasting of Cincinnati, Inc. is hereby NOTIFIED of
its APPARENT LIABILITY FOR A FORFEITURE in the amount of five
thousand dollars ($5,000) for willful and repeated violation of
Sections 73.51(e)(2) and 73.1560(a)(1) of the Rules.
12. 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, J4 SHALL PAY the full amount
of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
13. 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. 200232360007, FRN: 0004-2892-60.
14. 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. 200232360007, FRN:
0004-2892-60.
15. 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.
16. 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
17. IT IS FURTHER ORDERED THAT this NOTICE OF APPARENT
LIABILITY shall be sent by Certified Mail, Return Receipt
Requested, to J4 Broadcasting of Cincinnati, Inc., 3540 Reading
Road, Cincinnati, Ohio 45229.
FEDERAL COMMUNICATIONS
COMMISSION
James A. Bridgewater
District Director
Detroit Office, Enforcement
Bureau
_________________________
1 47 C.F.R. §§ 73.51(e)(2) and 73.1560(a)(1).
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, 0.311 and 1.80.
6 See 47 C.F.R. § 1.1914.