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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-03-NY-329
Crystal Coast Communications, Inc. )
WRIV ) NAL/Acct. No.
200432380009
Riverhead, NY )
) FRN: 0009 6876 82
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: March 8, 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 Crystal Coast Communications, Inc.
(``Crystal''), licensee of radio station, WRIV, has apparently
violated Sections 11.61(a)(2)(i)(A) and 73.1820(a)(1)(C)(iii) of
the Commission's Rules (the ``Rules''),1 by failing to conduct
required weekly tests of the Emergency Alert System (``EAS'') and
failing to maintain required station records of weekly EAS tests.
We conclude that Crystal is apparently liable for a forfeiture in
the amount of three thousand dollars ($3,000).
II. BACKGROUND
2. On September 23, 2003, a Commission agent conducted an
EAS inspection of radio station, WRIV, located at 40 West Main
Street, Riverhead, NY 11901. Based upon the agent's inspection
of WRIV's station records, it was determined that WRIV failed to
conduct required weekly tests of the EAS header and EOM codes for
the weeks of March 9-29, 2003, April 13, 2003 to May 3, 2003, May
11, 2003 to August 9, 2003, and August 24-30, 2003. WRIV failed
to maintain station records of required weekly EAS tests
transmitted for the weeks of March 9-29, 2003, April 13, 2003 to
May 3, 2003, May 11, 2003 to August 9, 2003, and August 24-30,
2003, and state reasons why EAS tests were not transmitted.
III. DISCUSSION
3. Section 11.61(a)(2)(i)(A) of the 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. WRIV's station records showed that required weekly tests
of the EAS header and EOM codes were not conducted for the weeks
of March 9-29, 2003, April 13, 2003 to May 3, 2003, May 11, 2003
to August 9, 2003, and August 24-30, 2003.
4. Section 73.1820(a)(1)(C)(iii) of the Rules requires all
broadcast stations to make entries in station log of monthly and
weekly EAS tests transmitted and received. Entries were not made
in WRIV's station records of weekly EAS tests transmitted for the
weeks of March 9-29, 2003, April 13, 2003 to May 3, 2003, May 11,
2003 to August 9, 2003, and August 24-30, 2003, or reasons why
weekly EAS tests were not transmitted as required by Section
11.35(b)2.
5. Based on the evidence before us, we find that, Crystal
willfully3 and repeatedly4 violated Sections 11.61(a)(2)(i)(A)
and 73.1820(a)(1)(C)(iii) of the Rules by failing to conduct
required weekly tests of the EAS header and EOM codes for the
weeks of March 9-29, 2003, April 13, 2003 to May 3, 2003, May 11,
2003 to August 9, 2003, and August 24-30, 2003, and failing to
log required entries of reasons why weekly EAS tests were not
transmitted for the weeks of March 9-29, 2003, April 13, 2003 to
May 3, 2003, May 11, 2003 to August 9, 2003, and August 24-30,
2003.
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''),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,6 (``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 three thousand dollar ($3,000) monetary forfeiture is
warranted.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act,7 and Sections 0.111, 0.311 and 1.80 of the
Rules8, Crystal 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)
and 73.1820(a)(1)(C)(iii) 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, Crystal 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. 200432380009 and FRN: 0009 6876 82.
10. Any response to this NAL must be mailed to Federal
Communications Commission, Spectrum Enforcement Division, 445
12th Street, S.W., Washington, D.C. 20554, and MUST INCLUDE THE
NAL/Acct. No. 200432380009.
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. 20554.9
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 Crystal Coast Communications, Inc., P.O. Box 1390,
Riverhead, NY 11901.
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) and 73.1820(a)(1)(C)(iii).
2 47 C.F.R. § 11.35(b).
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).
7
47 U.S.C. § 503(b)
847 C.F.R. §§ 0.111, and 0.311.
9 See 47 C.F.R. § 1.1914.