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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-02-NY-248
)
IW Limited Liability Company ) NAL/Acct. No.
200332380015
WRCN-FM )
Newton, MA ) FRN: 0003-7827-60
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: January 31,
2003
By the District Director, New York Office, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that IW Limited Liability Company (``IW''),
licensee of radio station, WRCN-FM, has apparently violated
Sections 11.61(a)(2)(i)(A), 11.61(a)(1)(i), and 11.61(b) of the
Commission's Rules (the ``Rules''),1 by failing to conduct
required monthly and weekly tests of the Emergency Alert System
(``EAS'') and failing to maintain station records of required
monthly and weekly EAS test messages. We conclude that IW is
apparently liable for a forfeiture in the amount of three
thousand dollars ($3,000).
II. BACKGROUND
2. On October 29, 2002, a Commission agent conducted an
inspection of radio station, WRCN-FM's EAS, located at 3241 Route
112, Building #7, Medford, NY 11763. Based upon the agent's
inspection of WRCN-FM's station records, it was determined that
WRCN-FM:
(a) Failed to conduct required weekly tests of the EAS
header and EOM codes for the weeks of August 18-24, 2002 and
October 20-26, 2002.
(b) Failed to conduct required monthly tests of the EAS
header codes, Attention Signal, Test Script, and EOM code for
the months of August 2002, September 2002, and October 2002.
(c) Failed to install and maintain EAS equipment so that it
is capable of receiving EAS test messages for the months of
August 2002, September 2002, and October 2002, and for the
week of September 1-7, 2002, and from September 15, 2002 to
October 12, 2002.
(d) Failed to maintain station records of required monthly
EAS tests received for the months of August 2002, September
2002, and October 2002, and state reasons why EAS tests were
not received.
(e) Failed to maintain station records of required weekly
EAS tests received for the week of September 1-7, 2002, and
from September 15, 2002 to October 12, 2002, and state reasons
why EAS tests were not received.
3. On November 13, 2002, the New York Office sent a Notice
of Violation for failure to conduct required monthly and weekly
EAS tests, by First Class and Certified Mail Return Receipt
Requested, to IW.
4. On November 26, 2002, the New York Office received a
reply to the Notice of Violation from Allan G. Moskowitz, counsel
for IW, stating that the required weekly EAS tests were not
conducted and no station records were maintained due to personnel
changes and insufficient training.
III. DISCUSSION
5. Section 11.61(a)(2)(i)(A) of the Commission's Rules
requires broadcast stations to conduct required weekly tests of
the EAS header and EOM codes at least once a week at random days
and times. Section 11.61(a)(1)(i) of the Commission's Rules
requires broadcast stations to conduct required monthly tests of
the EAS header codes, Attention Signal, Test Script, and EOM code
that conforms to procedures in EAS Operating Handbook, and
Section 11.61(a)(1)(v)2. Section 11.61(b) of the Commission's
Rules requires broadcast stations to make entries in station
records of monthly and weekly EAS tests received. WRCN-FM's
station records failed to show that required weekly tests of the
EAS header and EOM codes were conducted for the weeks of August
18-24, 2002 and October 20-26, 2002. WRCN-FM's station records
failed to show that required monthly tests of the EAS header
codes, Attention Signal, Test Script, and EOM code were conducted
for the months of August 2002, September 2002, and October 2002.
Entries were not made in the station records of EAS tests
received for the months of August 2002, September 2002, and
October 2002, for the week of September 1-7, 2002, and from
September 15, 2002 to October 12, 2002, or reasons why required
monthly and weekly EAS tests were not received.
6. Based on the evidence before us, we find that, IW
willfully3 and repeatedly4 violated Sections 11.61(a)(2)(i)(A),
11.61(a)(1)(i), and 11.61(b) of the Rules by failing to conduct
required weekly tests of the EAS header and EOM codes for the
weeks of August 18-24, 2002 and October 20-26, 2002, failing to
conduct required monthly tests of the EAS header codes, Attention
Signal, Test Script, and EOM code for the months of August 2002,
September 2002, and October 2002, and log entries of reasons why
required monthly and weekly EAS tests were not received for the
months of August 2002, September 2002, and October 2002, for the
week of September 1-7, 2002, and from September 15, 2002 to
October 12, 2002.
7. 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 for failure to make required
measurements or conduct required monitoring at $2,000, and base
forfeiture for failure to maintain required records at $1,000.
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, as amended (``Act''),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. Applying the
Forfeiture Policy Statement and the statutory factors to the
instant case and applying the inflation adjustments, we believe
that a three thousand dollar ($3,000) monetary forfeiture is
warranted.
IV. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act7 and Sections 0.111, 0.311 and 1.80 of the
Commission's Rules8, IW is hereby NOTIFIED of their APPARENT
LIABILITY FOR A FORFEITURE in the amount of three thousand
dollars ($3,000) for willful and repeated violations of Sections
11.61(a)(2)(i)(A), 11.61(a)(1)(i), and 11.61(b) of the
Commission's Rules.
9. 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, IW SHALL PAY the full amount
of the proposed forfeiture or SHALL FILE a written statement
seeking reduction or cancellation of the proposed forfeiture.
10. 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. 200332380015 and FRN: 0003-7827-60.
11. Any response to this NAL 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. 200332380015.
12. 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.
13. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Revenue and Receivable Operations Group, 445 12th
Street, S.W., Washington, D.C. 20554.9
14. 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.
15. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail Return Receipt
Requested to IW Limited Liability Company, Two Newton Executive
Park, Newton, MA 02462-1434, and a copy to Kaye Scholer LLP, The
McPherson Building, 901 Fifteenth Street, N.W., Washington, D.C.
20005.
FEDERAL COMMUNICATIONS
COMMISSION
Daniel W. Noel
District Director
New York Office
Attachment A - FCC List of Small Entities, October 2002
_________________________
1 47 C.F.R. §§ 11.61(a)(2)(i)(A), 11.61(a)(1)(i), and 11.61(b).
2 47 C.F.R. § 11.61(a)(1)(v).
3 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).
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.
6
47 U.S.C. § 503(b)(2)(D).
747 U.S.C. § 503(b).
847 C.F.R. §§ 0.111, and 0.311.
9 See 47 C.F.R. § 1.1914.