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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Radio One Licenses, Inc. ) File No. EB-00-BS-106
)
Licensee of Station WBOT(FM) ) NAL/Acct. No. 200132260001
)
Brockton, Massachusetts )
FORFEITURE ORDER
Adopted: August 10, 2001 Released: August
14, 2001
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order, we issue a monetary
forfeiture in the amount of twenty-one thousand five hundred
dollars ($21,500) against Radio One Licenses, Inc. (``Radio
One''), licensee of WBOT(AM), for willful violation of the
following Sections of the Commission's Rules (``Rules''):
11.35(a) (failure to have operational Emergency Alert System
(``EAS'') equipment); 73.1125(e)1 (failure to establish a local
or toll-free telephone number in the community of license);
73.1350(c)(1) (failure to establish monitoring procedures to
determine compliance with Section 73.1560 regarding operating
power); 73.1800(a) (failure to maintain a station log); and
73.3526(a)(2) (failure to maintain a public inspection file)2.
II. BACKGROUND
2. On March 14, 2000, the Commission's Boston Field Office
(``Boston Office'') conducted an inspection of radio station
WBOT(AM) in Boston, Massachusetts, after it received information
indicating that WBOT may have been in violation of the main
studio rule. The inspection revealed ten different rule
violations. On March 28, 2000, the District Director of the
Boston Office issued a Notice of Violation ("NOV") for the
violations. On March 8, 2001, the District Director of the
Boston Office issued a Notice of Apparent Liability ("NAL") to
Radio One in the amount of $22,000. After being granted an
extension of time to respond to the NAL, Radio One submitted its
response to the Commission on May 1, 2001. In its response,
Radio One acknowledges, with explanation, that all of the
violations occurred except the public file violation, which it
disputes. Radio One requests that all of the forfeiture amounts
be cancelled and/or reduced.
III. DISCUSSION
The Section 11.35(a) Violation
3. The District Director of the Boston Office assessed the
base forfeiture amount of $8,000 against Radio One for its
failure to have operational EAS equipment on the date of the
inspection. Radio One states that it became the licensee of WBOT
on October 1, 1999 and immediately notified the Commission that
the station would go silent to enable Radio One to implement
programming, format, and personnel changes. Radio One
acknowledges that it did not have operational EAS equipment from
December 1, 1999, the date it returned WBOT to the air, to March
20, 2000. However, Radio One asserts that it became aware of the
fact that WBOT had no EAS equipment in December of 1999, placed
an order for the station's new EAS equipment in January of 2000,
and that WBOT had received but not installed the equipment one
week before the inspection. Radio One contends that there were
several reasons that WBOT did not have operational EAS equipment
on the day of the inspection. Radio One claims that, unbeknownst
to it, no EAS equipment was associated with WBOT when the station
was purchased. Radio One explains that delays in the shipping
and receipt of the replacement equipment and difficulty in hiring
qualified personnel to install the equipment, as well as the
departure of its Director of Engineering, added further delay in
getting the EAS system operating and were factors beyond Radio
One's control.
4. Although Radio One asserts that it did not become aware
of the fact that WBOT lacked EAS equipment until December of
1999, the Rules only provide temporary authority to operate for
60 days pending repair or replacement of EAS equipment.3
Therefore, prior to the date of the inspection, Radio One was
required to have WBOT's EAS system operational or to make an
informal request to the District Director of the Boston Office
for additional time to replace the EAS system. Radio One
acknowledges that it did neither. Instead, WBOT simply operated
in violation of the rule.4
5. Radio One seeks an admonishment instead of a forfeiture
for its violation of Section 11.35(a) and cites to a letter of
admonishment issued by the Mass Media Bureau to Ms. Linda Reed,
President of KHYM, Inc., dated April 22, 1998 ("KHYM, Inc."), as
precedent. This argument lacks merit. The case Radio One cites
involved violations of different rules. In the KHYM, Inc. case,
the Mass Media Bureau admonished the licensee for violating
Section 73.1740(a)(4)5 of the Rules by not adhering to a minimum
operating schedule and failing to notify the Commission within 10
days of the limited or discontinued operation; and violation of
Section 73.1560(d)6 of the Rules by operating at reduced power
for more than 10 days without notifying the Commission of that
fact. This case, by contrast, involves failure to install EAS
equipment.
6. Alternatively, Radio One seeks a reduction of the
forfeiture amount. In support of its request for reduction,
Radio One cites to In re Catherine L. Waddill and G.M.D.
Partnership, 13 FCC Rcd 23861 (1998). In the Waddill case, the
Commission gave four specific reasons for reducing a $250,000
forfeiture, that had been issued to G.M.D. Partnership and G.M.D.
Partnership II (collectively "GMD"), to $8,000. First, the
Commission found no attempt to mislead the Commission or conceal
material information. Second, the record did not support a
finding that GMD acted in bad faith. Third, GMD attempted to
remedy the violation with which it was charged. Finally, and
most significantly, the Commission's current forfeiture policy
statement7 reflected an $8,000 penalty for alien ownership
violations, not the $250,000 forfeiture amount that had been
assessed. Thus, the reduction in Waddill merely brought the
forfeiture ultimately imposed by the Commission in line with the
base forfeiture amount indicated by the Forfeiture Policy
Statement for the violation. In the instant case, the forfeiture
imposed is already consistent with the Forfeiture Policy
Statement. Accordingly, we disagree that this case supports
reduction of the forfeiture for this violation. Moreover, we
note that the Commission recently upheld an $8,000 forfeiture for
a station's failure to have EAS equipment for one month, rather
than the four months here.8
7. Radio One's claims that it was plagued by delays in
shipping and receipt of replacement equipment also do not warrant
reduction or cancellation of the forfeiture. According to an
invoice submitted by Radio One, Radio One ordered the required
equipment on January 14, 2000 and it was shipped via overnight
carrier on that date. Radio One should have received the
equipment on January 15, 2000, two months before the inspection.
Although the equipment was shipped to Atlanta, it was clearly in
Radio One's possession. Accordingly, any delays in shipping the
equipment to WBOT do not appear to be circumstances beyond Radio
One's control. Similarly, we do not find Radio One's difficulty
in hiring staff to install the equipment or the departure of its
Director of Engineering to be circumstances warranting reduction
or cancellation of the forfeiture. Radio One has not indicated
what, if any, other avenues it pursued to get its EAS equipment
installed during the approximate two-month period that it had the
equipment on hand.
The Section 73.1125(e) Violation
8. Section 73.1125(e) of the Rules requires AM broadcast
stations to maintain a local telephone number in its community of
license or a toll-free number. Radio One relocated WBOT's main
studio from Brockton, Massachusetts, its community of license, to
Boston, Massachusetts, on May 15, 2000. For four months
following the relocation of the main studio, listeners in WBOT's
community of license could not reach WBOT without making a long
distance telephone call. Radio One explains that it was unaware
that Brockton listeners calling the new main studio in Boston
would have to make a toll call. Further, Radio One asserts that
WBOT always had a local number in Brockton that would enable
callers to get information concerning the station and that it
knows of no harm or inconvenience to the public that resulted
from the temporary lapse. Although Radio One may have had such
an arrangement, the fact remains that Brockton listeners calling
WBOT had to incur long-distance charges to do so for a four-month
period. This is a violation of Section 73.1125(e) of the Rules
and we impose a $1,000 forfeiture for the violation.9 However,
we note that Radio One voluntarily disclosed that it did not have
a local or toll free telephone line by which residents of
Brockton could reach WBOT once it relocated to Boston. For Radio
One's voluntary disclosure of this violation, we believe a
reduction of $500 is appropriate.
The Sections 73.1350(c)(1) and 73.1800(a) Violations
9. Section 73.1350(c)(1) of the Rules provides that
monitoring procedures and schedules must be established to enable
the licensee to determine compliance with Section 73.1560
regarding operating power, and other operating parameters.
Section 73.1800(a) requires licensees to maintain a station log
as required by Section 73.182010 of the Rules. Radio One
acknowledges that on the day of the inspection it did not have
monitoring procedures and schedules established, nor did it have
a station log. Although Radio One asserts that these violations
occurred because of miscommunications among personnel as to
clearly defined job responsibilities and an unanticipated change
in station personnel, there is no dispute that the violations
occurred. Thus, we impose a $2,000 forfeiture for the Section
73.1350(c)(1) violation (the base amount for this violation in
the Forfeiture Policy Statement) and a $1,000 forfeiture for the
Section 73.1800(a) violation.11
The Section 73.3526(a)(2) Violation
10. Section 73.3526(a)(2) requires broadcast licensees to
maintain a public inspection file. The District Director of the
Boston Office assessed a $10,000 forfeiture, which is the base
amount for this violation, against Radio One for not having a
public inspection file. Radio One contends that it has always
maintained a public inspection file at its main studio and, thus,
was in compliance with the Rule at the time of the inspection.
Radio One proffers that, possibly, the FCC agent asked the
station manager, Mr. Tom Calococci, to see the public inspection
file while they were inspecting the transmitter site, not at the
main studio, and the station manager mistakenly told the agent
that a public file had not yet been established. Radio One
asserts that had the agent asked for the public inspection file
at the main studio, he would have been provided access to it.
11. The investigating agent's notes from the inspection
establish that he inquired about the public file at the main
studio. The file was never made available to him. His notes
also reflect that later, at the transmitter site, he asked Mr.
Calicocci if the station had a public inspection file, to which
Mr. Calicocci responded, ``not yet.'' Thus, we do not find Radio
One's speculation about what might have happened to be
persuasive. Reasonable access to the public inspection file
serves the important purpose of facilitating citizen monitoring
of a station's operating performance and fostering community
involvement with local stations. This in turn helps ensure that
stations are responsive to the needs and interests of their local
communities.12 In order for the rule to serve its intended
purpose, the public inspection file has to be made available upon
request during normal business hours. Radio One violated Section
73.3526(a)(2) of the Rules when it did not provide the public
inspection file to the investigating agent upon his request. We
impose a $10,000 forfeiture for this violation.
12. With regard to all of the violations, Radio One asserts
that a reduction is warranted because it took expedient steps to
remedy the violations. Radio One's remedial actions to correct
the violations, while commendable, are not a mitigating factor.13
Radio One further contends that, despite its purchase of over
thirty radio stations nationwide over the last two years, none of
its stations has been found in violation of any of the
Commission's Rules. To the contrary, we note that the NOV issued
in the instant case is not the first issued to Radio One. The
District Director of the Boston Office issued an NOV to Radio One
on November 18, 1999 for violations at WBOT that are separate and
distinct from the violations in this case. Consequently, Radio
One does not have an overall history of compliance with the
Commission's Rules, and a reduction of the forfeiture on this
basis is not warranted.
IV. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act and Sections 0.111, 0.311 and 1.80(f)(4) of the
Rules,14 Radio One Licenses, Inc. IS LIABLE FOR A MONETARY
FORFEITURE in the amount of twenty-one thousand five hundred
dollars ($21,500) for violating Sections 11.35(a), 73.1125(e),
73.1350(c)(1), 73.1800(a), and 73.3526(a)(2) of the Commission's
Rules.
14. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules,15 within 30 days of
the release of this Order. If the forfeiture is not paid within
the period specified, the case may be referred to the Department
of Justice for collection pursuant to Section 504(a) of the
Act.16 Payment may be made by mailing a check or similar
instrument, payable to the order of the "Federal Communications
Commission," to the Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note
NAL/Acct. No. 200132260001. Requests for full payment under an
installment plan should be sent to: Chief, Revenue and
Receivables Group, 445 12th Street, S.W., Washington, D.C.
20554.17
15. IT IS FURTHER ORDERED that, a copy of this Forfeiture
Order shall be sent by Certified Mail Return Receipt Requested to
counsel for Radio One Licenses, Inc., Davis Wright Tremaine,
Attention: Pamela C. Cooper, Esq., 1500 K Street, NW, Washington,
DC 20005.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 Effective May 20, 2000, Section 73.1125 of the Rules was
amended and the subsections were, consequently, reordered. At
the time the Notice of Violation ("NOV") was issued, the Rule and
subsection that was violated was 73.1125(d). With the amendment
to and restructuring of Section 73.1125, the subsection that was
violated is now 73.1125(e). For clarity, we will refer to this
violation as a violation of Section 73.1125(e) of the Rules
throughout this document.
2 47 C.F.R. §§ 11.35(a), 73.1125(e), 73.1350(c)(1),
73.1800(a), 73.1560, 73.3526(a)(2).
3 See 47 C.F.R. 11.35(c).
4 See Arnold Broadcasting Company, Inc., FCC 01-197, released
July 5, 2001 (Commission upheld imposition of an $8,000
forfeiture for a one-month long violation of Section 11.35(a) of
the Rules).
5 47 C.F.R. 73.1740(a)(4).
6 47 C.F.R. 73.1560(d).
7 The Commission's Forfeiture Policy Statement and Amendment
to Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 13 FCC Rcd
303 (1999) ("Forfeiture Policy Statement").
8 See Arnold Broadcasting, note 4 supra.
9 See M.C. Allen Productions, 16 FCC Rcd 9505 (Enf. Bur.
2001) (forfeiture imposed for violation of Section 73.1125(e) of
the Rules).
10 47 C.F.R. § 73.1820.
11 See KYOO Communications, 16 FCC Rcd 9291 (Enf. Bur. 2001)
($1,000 forfeiture imposed for violation of Section 73.1800(a) of
the Rules).
12 In the Matter of Review of the Commission's Rules
Regarding the Main Studio and Local Public Inspection Files of
Broadcast Television & Radio Stations, 13 FCC Rcd 15691, 15700
(1998).
13 E.g., Puerto Rico Tower Co., Inc., 16 FCC Rcd 271, 273
(Enf. Bur. 2001); Crown Communication, Inc., 15 FCC Rcd 21937,
21939 (Enf. Bur. 2000) (both citing Station KGVL, Inc., 42 FCC 2d
258, 259 (1973)).
14 47 U.S.C. § 503(b); 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
15 47 C.F.R. § 1.80.
16 47 U.S.C. § 504(a).
17 See 47 C.F.R. § 1.1914.