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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-03-NY-082
) File No. EB-03-NY-083
Capital Media Corporation ) File No. EB-03-NY-084
WHAZ ) File No. EB-03-NY-085
WBAR-FM )
WMYY ) NAL/Acct. No.
200432380008
WMNV )
Cohoes, NY ) FRN: 0003 7934 60
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 1, 2004
By the District Director, New York Office, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture
("NAL"), we find that Capital Media Corporation (``Capital
Media''), licensee of radio stations, WHAZ, WBAR-FM, WMYY, and
WMNV, has apparently violated Sections 11.35(a) and 11.61(b) of
the Commission's Rules (the ``Rules''),1 by failing to maintain
station records of required monthly and weekly EAS test messages.
We conclude that Capital Media is apparently liable for a
forfeiture in the amount of four thousand dollars ($4,000).
II. BACKGROUND
2. On June 5, 2003, a Commission agent conducted an EAS
inspection of radio stations, WHAZ, Troy, NY; WBAR-FM, Lake
Luzerne, NY; WMYY, Schoharie, NY; and WMNV, Rupert, VT. The four
radio stations were co-located at 30 Park Avenue, Cohoes, NY
12047, and were using the same EAS system. Based upon the
agent's inspection of WHAZ, WBAR-FM, WMYY, and WMNV's station
records, he determined that WHAZ, WBAR-FM, WMYY, and WMNV failed
to maintain station records of required monthly EAS tests
received for the months of December 2002, January 2003, March
2003, and April 2003, or state reasons why EAS tests were not
received, and failed to maintain station records of required
weekly EAS tests received for the week of January 5-11, 2003, or
state reasons why EAS tests were not received.
III. DISCUSSION
3. Section 11.35(a) of the Rules requires broadcast
stations to make entries in station records of any failure to
receive monthly and weekly EAS tests. Entries were not made in
WHAZ, WBAR-FM, WMYY, and WMNV's station records of failure to
receive monthly EAS tests for the months of December 2002,
January 2003, March 2003, and April 2003, and weekly EAS tests
for the week of January 5-11, 2003.
4. Section 11.61(b) of the Rules requires broadcast
stations to make entries in station records of monthly and weekly
EAS tests received. Entries were not made in WHAZ, WBAR-FM,
WMYY, and WMNV's station records of monthly EAS tests received
for the months of December 2002, January 2003, March 2003, and
April 2003, and entries were not made in the station records of
weekly EAS tests received for the week of January 5-11, 2003.
5. Based on the evidence before us, we find that, Capital
Media willfully2 and repeatedly3 violated Sections 11.35(a) and
11.61(b) of the Rules by failing to maintain station records of
required monthly EAS tests received for the months of December
2002, January 2003, March 2003, and April 2003, and state reasons
why EAS tests were not received, failing to maintain station
records of required weekly EAS tests received for the week of
January 5-11, 2003, and state reasons why EAS tests were not
received.
6. 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 for failure to maintain required records
at $4,000 ($1,000 for each of Capital Media's four radio
stations, WHAZ, WBAR-FM, WMYY, and WMNV). 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,5 (``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. Applying the Forfeiture Policy Statement
and the statutory factors to the instant case and applying the
inflation adjustments, we believe that a four thousand dollar
($4,000) monetary forfeiture is warranted.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act ,6 and Sections 0.111, 0.311 and 1.80 of the
Rules7, Capital Media is hereby NOTIFIED of their APPARENT
LIABILITY FOR A FORFEITURE in the amount of four thousand dollars
($4,000) for willful and repeated violations of Sections 11.35(a)
and 11.61(b) of the Commission's Rules.
8. 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, Capital Media SHALL PAY the full amount of
the proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
9. 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. 200432380008 and FRN: 0003 7934 60.
10. Any response to this NAL must be mailed to Federal
Communications Commission, Enforcement Bureau, Spectrum
Enforcement Division, 445 12th Street, S.W., Washington, D.C.
20554, and MUST INCLUDE THE NAL/Acct. No. 200432380008.
11. 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.
12. 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. 20554.8
13. 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 Spectrum Enforcement 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.
14. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF
APPARENT LIABILITY shall be sent by Certified Mail Return Receipt
Requested to Capital Media Corporation, 30 Park Avenue, Cohoes,
NY 12047.
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. §§ 11.35(a) and 11.61(b).
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).
747 C.F.R. §§ 0.111, and 0.311.
8 See 47 C.F.R. § 1.1914.