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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
)
Access.1 New York License Company,
LLC ) File Number EB-05-NY-251
Licensee of AM Station WWRL ) NAL/Acct. No. 200632380006
Secaucus, NJ ) FRN 0006161855
Facility ID # 68906 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: July 12, 2006
By the District, New York Office, Northeast Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that Access.1 New York License Company, LLC ("Access.1"), the licensee
of AM station WWRL in Secaucus, New Jersey, apparently willfully and
repeatedly violated Section 73.3526(e)(12) of the Commission's Rules
("Rules") by failing to maintain a radio issues/programs list in the
station's public inspection file. We conclude, pursuant to Section
503(b) of the Communications Act of 1934, as amended ("Act"), that
Access.1 is apparently liable for a forfeiture in the amount of four
thousand dollars ($4,000). We also admonish Access.1 for failing to
maintain the field strength values of WWRL's directional antenna
monitoring points within the limits specified in the station
authorization, as required under Section 73.62 of the Rules.
II. BACKGROUND
2. On September 19, 2005, an agent from the Commission's New York Office
conducted an inspection with WWRL's chief engineer at the station's
transmitter, which is located at 50 Radio Avenue, Secaucus, NJ. The
agent found that the field strength at the 276-degree radial
monitoring point and the field strength at the 259-degree radial
monitoring point exceeded the values specified in the station's
authorization.
3. On September 20, 2005, the agent conducted an inspection with WWRL's
chief operator at the station's main studio at 333 Seventh Avenue,
14^th Floor, New York, NY. The agent conducted a comprehensive review
of WWRL's public inspection file and observed that it did not contain
a radio issues/programs list. After further inquiry by the agent,
station personnel produced a list of programs.
4. On January 26, 2006, the New York Office issued a Letter of Inquiry
("LOI") to Access.1. In its response to the LOI, Access.1 stated that
it believes the variances in the field strength at the 276-degree
radial and the 259-degree radial monitoring points were the result of
ongoing construction in the area. The station records submitted in
response to the LOI also showed that the field strength at the
276-degree radial monitoring point exceeded the authorized limits by
23% on July 10, 2005 and the 259-degree radial monitoring point
exceeded the limit by 5% on June 13, 2005. Access.1 indicated in its
response that it believed those variances also were due to
construction in the area. With regard to the radio issues/programs
list, Access.1 stated that it misunderstood the requirements of the
public inspection file rule. Access.1 further reported that it has
corrected all of the violations identified by the agent during the
September 19, 2005 inspection.
III. DISCUSSION
5. Section 503(b) of the Act provides that any person who willfully or
repeatedly fails to comply substantially with the terms and conditions
of any license, or willfully or repeatedly fails to comply with any of
the provisions of the Act or of any rule, regulation or order issued
by the Commission thereunder, shall be liable for a forfeiture
penalty. The term "willful" as used in Section 503(b) has been
interpreted to mean simply that the acts or omissions are committed
knowingly. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
6. Section 73.3526(e)(12) of the Rules provides that commercial AM and FM
broadcast stations must place in their public inspection file, for
each calendar quarter, a radio issues/programs list, which is a list
of programs that have provided the station's most significant
treatment of community issues during the preceding three-month period.
The lists must be retained in the public inspection file until final
action has been taken on the station's next license renewal
application. A review of WWRL's public inspection file by the agent on
September 20, 2005 showed that the file did not contain any radio
issues/programs lists. The program list that subsequently was produced
by station personnel did not comply with the requirements for the
issues/programs list set forth in Section 73.3526(e)(12). Access.1's
claim that it misunderstood the requirements of the public inspection
file rule does not excuse its failure to properly maintain an
issues/programs list. It is well-established Commission policy that a
subject's ignorance of the requirements in the Commission's rules does
not exonerate, excuse or mitigate its violations. Similarly, the
Commission consistently has held that corrective action taken to come
into compliance with the Rules is expected, and does not nullify or
mitigate any prior forfeitures or violations. Accordingly, based on
the evidence before us, we conclude that Access.1 apparently willfully
and repeatedly violated Section 73.3526(e)(12) of the Rules.
7. Based on the evidence before us, we also admonish Access.1 for failing
to take appropriate measures when it determined that the field
strength at certain radial monitoring points exceeded the limits set
forth in the station authorization. Section 73.62(b)(3) of the Rules
requires that, when any monitoring point exceeds its specified limits,
the licensee must terminate operation within three hours or reduce
power. Access.1's claim that it believed the limits were exceeded
because of construction in the area does not negate its responsibility
to comply with the requirements set forth in Section 73.62.
8. Pursuant to The Commission's Forfeiture Policy Statement and Amendment
of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
("Forfeiture Policy Statement"), and Section 1.80 of the Rules, the
base forfeiture amount for violation of the public file rule is
$10,000. Because WWRL's public file was mostly complete and missing
only one item, we conclude a reduction in the base forfeiture amount
for the public file violation to $4,000 is appropriate. In assessing
the monetary forfeiture amount, we must also take into account the
statutory factors set forth in Section 503(b)(2)(D) of the Act, which
include the nature, circumstances, extent, and gravity of the
violations, and with respect to the violator, the degree of
culpability, and history of prior offenses, ability to pay, and other
such matters as justice may require. Applying the Forfeiture Policy
Statement, Section 1.80, and the statutory factors to the instant
case, we conclude that Access.1 is apparently liable for a $4,000
forfeiture.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311,
0.314 and 1.80 of the Commission's Rules, Access.1 New York License
Company, LLC is hereby NOTIFIED of this APPARENT LIABILITY FOR A
FORFEITURE in the amount of four thousand dollars ($4,000) for
violations of Section 73.3526(e)(12) of the Rules.
10. IT IS FURTHER ORDERED that Access.1 New York License Company, LLC IS
ADMONISHED for failure to ensure that all of its radial monitoring
points were in compliance with the limits set forth in the station
authorization, as required under Section 73.62.
11. 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 for Forfeiture, Access.1 New York License
Company, LLC SHALL PAY the full amount of the proposed forfeiture or
SHALL FILE a written statement seeking reduction or cancellation of
the proposed forfeiture.
12. Payment of the forfeiture must be made by check or similar instrument,
payable to the order of the Federal Communications Commission. The
payment must include the NAL/Acct. No. and FRN No. referenced above.
Payment by check or money order may be mailed to Federal
Communications Commission, P.O. Box 358340, Pittsburgh, PA 15251-8340.
Payment by overnight mail may be sent to Mellon Bank /LB 358340, 500
Ross Street, Room 1540670, Pittsburgh, PA 15251. Payment by wire
transfer may be made to ABA Number 043000261, receiving bank Mellon
Bank, and account number 911-6106.
13. The response, if any, must be mailed to Federal Communications
Commission, Enforcement Bureau, Northeast Region, New York Office, 201
Varick Street, New York, NY 10014 and must include the NAL/Acct. No.
referenced in the caption.
14. 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.
15. Requests for payment of the full amount of this Notice of Apparent
Liability for Forfeiture under an installment plan should be sent to:
Chief, Revenue and Receivables Operations Group, 445 12th Street,
S.W., Washington, D.C. 20554.
16. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to Access.1 New York License Company, LLC
at its address of record and to its counsel.
FEDERAL COMMUNICATIONS COMMISSION
Daniel W. Noel
District Director
New York Office
Northeast Region
Enforcement Bureau
47 C.F.R. S 73.3526(e)(12) and 73.62.
47 U.S.C. S 503(b).
The field strength of the 259-degree radial monitoring point exceeded the
licensed maximum value by 8% and the field strength of the 276-degree
radial monitoring point exceeded the licensed maximum by 11%.
Section 312(f)(1) of the Act, 47 U.S.C. S 312(f)(1), which applies to
violations for which forfeitures are assessed under 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 or any rule or regulation of the Commission
authorized by this Act...." See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
Section 312(f)(2) of the Act, 47 U.S.C. S 312(f)(2), which also applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[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."
47 C.F.R. S 73.3526(e)(12).
See e.g., Emery Telephone, 13 FCC Rcd 23854, 23859 para. 12, (1998) recon.
dismissed in part and denied in part, 15 FCC Rcd 7181 (1999).
See Seawest Yacht Brokers, Forfeiture Order, 9 FCC Rcd 6099 (1994).
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd. 303 (1999), 47 C.F.R.
S1.80.
47 U.S.C. S 503(b)(2)(D).
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 0.314, 1.80,
73.3526(e)(12).
47 C.F.R. S 73.62.
See 47 C.F.R. S 1.1914.
(...continued from previous page)
Federal Communications Commission
2
Federal Communications Commission