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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
WADV Radio, Inc. ) File Number EB-05-PA-046
Licensee of Station WADV ) NAL/Acct. No. 200632400003
Lebanon, Pennsylvania ) FRN 0005-00-4502
Facility ID # 20401 )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Released: September 29, 2006
By the District Director, Philadelphia Office, Northeast Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that WADV Radio, Inc., the licensee of AM Broadcast Radio station WADV
in Lebanon, Pennsylvania, apparently willfully and repeatedly violated
Section 73.1745(a) of the Commission's Rules ("Rules") by operating
its station at a power of more than 5 Watts during nighttime hours, in
direct contravention of the terms of its station authorization. We
conclude, pursuant to Section 503(b) of the Communications Act of
1934, as amended ("Act"), that WADV is apparently liable for a
forfeiture in the amount of four thousand dollars ($4,000).
II. BACKGROUND
2. On December 20, 2005, the Philadelphia Office began an investigation
in response to a complaint that station WADV was operating in excess
of its authorized nighttime power. Agents from the Philadelphia Office
installed automatic radio monitoring equipment at a cellular radio
tower 0.7 miles from the WADV transmitter site. The monitoring
equipment was configured to continuously record the relative emission
levels of station WADV on the frequency 940 kHz.
3. The WADV license specifies that the station's authorized daytime power
is 1000 Watts and its authorized nighttime power is 5 Watts. WADV must
operate with its authorized nighttime power of 5 Watts between local
sunset and local sunrise times and operate with its authorized daytime
power of 1000 Watts between local sunrise and local sunset times. The
WADV license specifies that the local sunset time is 4:45 p.m. and the
local sunrise time is 7:30 a.m. (non-advanced Local Standard Times)
during the month of December. The WADV license also specifies that
local sunset time is 5:00 p.m. and that local sunrise time is 7:30
a.m. (non-advanced Local Standard Times) during the month of January.
In addition, as a Class D station, WADV is not required to operate at
nighttime. That is, WADV may choose to operate at its authorized
nighttime power or it may choose to not operate the station at
nighttime.
4. According to the data from the monitoring equipment, WADV operated
with its authorized daytime power on December 24, 2005 between 4:45
p.m. and 5:40 p.m.; on December 27, 2005 between 4:45 p.m. and 6:24
p.m.; on December 30, 2005 between 4:45 p.m. and 5:46 p.m., and on
December 31, 2005 between 4:45 p.m. and 6:01 p.m. On each of these
days, instead of reducing power to its authorized nighttime power, the
station went off the air. The data further indicated that WADV
transmitted throughout the night with its authorized daytime power
between 4:45 p.m. on December 25, 2005 and 7:30 a.m. on December 26,
2005.
5. The data from the monitoring equipment also showed that, during the
month of January, WADV continuously transmitted throughout the
nighttime with its authorized daytime power between 5:00 p.m. on
January 1, 2006 and 7:30 a.m. on January 2, 2006. The data further
indicated that WADV operated at nighttime with its authorized daytime
power on January 6, 2006 between 5:00 p.m. and 5:55 p.m.; on January
7, 2006 between 5:00 p.m. and 6:02 p.m.; on January 8, 2006 between
5:00 p.m. and 5:54 p.m.; on January 9, 2006 between 5:00 p.m. and 5:26
p.m.; and on January 10, 2006 between 5:00 p.m. and 6:29 p.m. On each
of these days, instead of reducing power to its authorized nighttime
power, the station went off the air.
6. On January 11, 2006, agents conducted an inspection of station WADV at
its main studio in Lebanon, PA with a station employee. The agents
found that WADV's transmitter was not capable of operating with its
authorized nighttime power of 5 Watts. The agents reviewed the
station's operator logs for the months of December 2005 and January
2006, which included daily handwritten entries of the times the
station commenced and ceased operation. The entries in the operator
log were consistent with the data generated by the FCC monitoring
equipment.
III. DISCUSSION
7. 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.
8. Section 73.1745(a) of the Rules states that "[n]o broadcast station
shall operate at times, or with modes or power, other than those
specified and made part of the license. . . ." Station WADV's
authorization specifies that the station must reduce power to 5 watts
at local sunset time or, in the alternative, cease operating at that
time. The relative signal level measurements obtained with FCC
monitoring equipment and the daily entries made in the operator log
showed that WADV failed to reduce power or cease operations at local
sunset time on numerous occasions during December 2005 and January
2006. Based on the evidence before us, we find that WADV Radio, Inc.
apparently willfully and repeatedly violated Section 73.1745(a) of the
Rules by operating with its authorized daytime power at nighttime.
9. 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 exceeding the power limits is $4,000. 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 WADV Radio, Inc. is apparently liable for a
four thousand dollar ($4,000) forfeiture.
IV. ORDERING CLAUSES
10. 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, WADV Radio, Inc. is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
$4,000 for violations of Section 73.1745(a) of the Rules.
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, WADV Radio, Inc. 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, Philadelphia Office,
One Oxford Valley Building, Suite 404, 2300 East Lincoln Highway,
Langhorne, Pennsylvania 19047 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:
Associate Managing Director, Financial Operations, 445 12th Street,
S.W., Room 1A625, 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 WADV Radio, Inc. at its address of
record.
FEDERAL COMMUNICATIONS COMMISSION
David C. Dombrowski
Acting District Director
Philadelphia Office
Northeast Region
Enforcement Bureau
47 C.F.R. S 73.1745(a).
47 U.S.C. S 503(b).
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."
See supra paras. 3-5.
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, 73.1745(a).
See 47 C.F.R. S 1.1914.
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Federal Communications Commission
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Federal Communications Commission