Click here for Adobe Acrobat version
Click here for Microsoft Word version
********************************************************
NOTICE
********************************************************
This document was converted from Microsoft Word.
Content from the original version of the document such as
headers, footers, footnotes, endnotes, graphics, and page numbers
will not show up in this text version.
All text attributes such as bold, italic, underlining, etc. from the
original document will not show up in this text version.
Features of the original document layout such as
columns, tables, line and letter spacing, pagination, and margins
will not be preserved in the text version.
If you need the complete document, download the
Microsoft Word or Adobe Acrobat version.
*****************************************************************
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
J4 Broadcasting of Cincinnati, Inc. ) File No. EB-01-DT-657
) NAL/Acct. No. 200232360007
Licensee of Station WCIN(AM) ) FRN 0004-2892-60
Cincinnati, Ohio )
FORFEITURE ORDER
Adopted: February 4, 2003 Released: February 6,
2003
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of five thousand dollars
($5,000) to J4 Broadcasting of Cincinnati, Inc. (``J4
Broadcasting''), licensee of Station WCIN(AM), Cincinnati,
Ohio, for willful and repeated violation of Sections
73.51(e)(2) and 73.1560(a)(1) of the Commission's Rules
(``Rules'').1 The noted violations involve J4 Broadcasting's
failure to maintain a record of the station's efficiency
factor ``F'' used to determine operating power and operation
of WCIN with power in excess of 105% of the authorized power.
2. On June 20, 2002, the Commission's Detroit, Michigan
Field Office (``Detroit Office'') issued a Notice of Apparent
Liability for Forfeiture (``NAL'') to J4 Broadcasting for a
forfeiture in the amount of five thousand dollars ($5,000).2
J4 Broadcasting filed a response to the NAL on August 20,
2002.
II. BACKGROUND
3. In 1996, after being evicted from its authorized
transmitter site, J4 Broadcasting requested and was granted
Special Temporary Authorization (``STA'') to operate WCIN from
a temporary site at reduced power while it located a permanent
site. In 1997, after J4 Broadcasting located a permanent site
for WCIN and filed an application for a construction permit to
relocate WCIN to that site,3 the Commission staff granted J4
Broadcasting's request for STA to operate from the proposed
permanent site with a daytime non-directional power of 250
watts and a nighttime non-directional power of 15 watts. The
Commission staff has granted J4 Broadcasting numerous
extensions of this STA since that time.
4. On September 19, 2000, the Commission received a
complaint alleging, among other things, that WCIN was
operating with power in excess of its authorized power during
both daytime and nighttime hours.
5. On September 26, 2000, an agent from the Detroit Office
monitored and made field strength measurements of WCIN. On
September 27, 2000, the agent again made field strength
measurements of WCIN and then inspected WCIN. The agent found
numerous rule violations, including violations of Sections
73.51(e)(2) and 73.1560(a)(1) (failure to maintain a record of
the station's efficiency factor ``F'' and operation of the
station with power in excess of 105% of the authorized daytime
and nighttime power limits).
6. On November 27, 2000, the Detroit Office issued a
Notice of Violation (``NOV'') to J4 Broadcasting for numerous
rule violations, including the violations of Sections
73.51(e)(2) and 73.1560(a)(1). J4 Broadcasting submitted a
response to the NOV on December 6, 2000, detailing the actions
it was taking to remedy the violations, and supplemented this
response on December 9, 2000.
7. On November 7, 2001, the Detroit Office received
another complaint alleging that WCIN was operating with power
in excess of its authorized daytime and nighttime power
limits.
8. On January 16, 2002, and again on January 17, 2002,
agents from the Detroit Office monitored and made field
strength measurements of WCIN both prior to and after sunset.
The field strength measurements taken by the agents indicated
that WCIN was operating in excess of 105% of its authorized
power during both daytime and nighttime operation.
Specifically, the agents determined that WCIN was operating at
2070 watts during both daytime and nighttime operation, which
was approximately 828% of the daytime power of 250 watts and
approximately 13,800% of the nighttime power of 15 watts
permitted by the STA.4 The agents also inspected WCIN on
January 17, 2002. The inspection revealed, among other
things, that the station did not have a record of the
efficiency factor ``F'' used to determine the operating power,
station personnel were not monitoring the station's operating
power, and station personnel did not know how to determine the
station's operating power or how to switch to nighttime power.
9. On January 22, 2002, J4 Broadcasting sent a letter to
the Detroit Office addressing some of the violations noted at
the time of the inspection. On March 22, 2002, the Detroit
Office issued an NOV to J4 Broadcasting for numerous rule
violations, including the subject violations before us. On
April 5, 2002, the Detroit Office received J4 Broadcasting's
response to the NOV, which described the actions it was taking
to correct the violations.
10. On June 20, 2002, the Detroit Office issued an NAL
finding J4 Broadcasting apparently liable for a $5,000
forfeiture for failure to maintain a record of the station's
efficiency factor ``F'' used to determine operating power in
willful and repeated violation of Section 73.51(e)(2) of the
Rules and operation of WCIN with power in excess of 105% of
the authorized power in willful and repeated violation of
Section 73.1560(a)(1) of the Rules. In its response to the
NAL, J4 Broadcasting does not dispute that it violated these
rules. However, J4 Broadcasting requests cancellation of the
proposed forfeiture and submits its tax returns for 1999, 2000
and 2001 in support of this request.
III. DISCUSSION
11. The forfeiture amount in this case was assessed in
accordance with Section 503(b) of the Communications Act of
1934, as amended, (``Act''),5 Section 1.80 of the Rules,6 and
The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd
303 (1999) (``Policy Statement''). In examining J4
Broadcasting's response, Section 503(b) of the Act requires
that the Commission take into account 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.7
12. Section 73.51(e)(2) of the Rules requires that a
record of the efficiency factor ``F'' used in determining a
station's operating power be kept in the station's records.
Without a record of the efficiency factor, a station is unable
to determine its operating power using the indirect method and
therefore is unable to determine whether it is operating at
its authorized power levels. J4 Broadcasting does not dispute
that it failed to maintain a record of the efficiency factor
``F'' in its station records. Accordingly, we conclude that
J4 Broadcasting willfully8 and repeatedly9 violated Section
73.51(e)(2) of the Rules.
13. Section 73.1560(a)(1) of the Rules provides that a
station may not operate in excess of 105% of its authorized
power. J4 Broadcasting does not dispute that it operated WCIN
in excess of 105% of the authorized daytime and nighttime
power. Accordingly, we conclude that J4 Broadcasting
willfully and repeatedly violated Section 73.1560(a)(1) of the
Rules.
14. Although J4 Broadcasting does not specifically assert
that it is unable to pay the $5,000 forfeiture proposed in the
NAL for these violations, it requests cancellation of the
forfeiture and submits copies of its tax returns for 1999,
2000 and 2001 in support of this request. The Commission has
repeatedly held that a company's gross revenues are the best
indicator of its ability to pay a forfeiture.10 After
considering the financial information submitted by J4
Broadcasting, we conclude that its gross revenues are
sufficient to enable it to pay a $5,000 forfeiture.
15. We have examined J4 Broadcasting's response to the NAL
pursuant to the statutory factors above, and in conjunction
with the Policy Statement as well. As a result of our review,
we conclude that J4 Broadcasting willfully and repeatedly
violated Sections 73.51(e)(2) and 73.1560(a)(1) of the Rules,
and we find no basis to rescind or reduce the forfeiture
proposed for these violations.
IV. ORDERING CLAUSES
16. Accordingly, IT IS ORDERED that, pursuant to Section
503 of the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of
the Rules,11 J4 Broadcasting of Cincinnati, Inc. IS LIABLE FOR
A MONETARY FORFEITURE in the amount of five thousand dollars
($5,000) for willful and repeated violations of Sections
73.51(e)(2) and 73.1560(a)(1) of the Rules.
17. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Rules 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.12 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 reference NAL/Acct. No. 200232360007 and FRN
0004-2892-60. Requests for full payment under an installment
plan should be sent to: Chief, Revenue and Receivables
Operations Group, 445 12th Street, S.W., Washington, D.C.
20554.13
18. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by first class mail and certified mail, return receipt
requested, to J4 Broadcasting of Cincinnati, Inc., 3540
Reading Road, Cincinnati, Ohio 45229.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. §§ 73.51(e)(2) and 73.1560(a)(1).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200232360007 (Enf. Bur., Detroit Office, released June 20, 2002).
3 The Commission staff granted J4 Broadcasting's application
for a construction permit on February 18, 1998 (File No. BP-
19960531AD), but dismissed its application for a license to cover
the construction permit (File No. 20010216ABA) on August 7, 2001,
after finding that the special operating restrictions and
conditions specified in the construction permit had not been
satisfied. Thus, J4 Broadcasting's construction permit, which
had expired on March 15, 2001, was forfeited on August 7, 2001.
J4 Broadcasting has since filed another application for a
construction permit to relocate WCIN to the permanent site (File
No. BP-20011015AGS). That application remains pending.
4 At the time of the inspection, J4 Broadcasting's STA had
actually expired. However, the Commission staff subsequently
granted J4 Broadcasting's request for another extension of its
STA. Given that J4 Broadcasting has been operating WCIN pursuant
to STA at reduced power for more than five years and that the
Commission staff has denied J4 Broadcasting's requests to modify
the STA to increase its daytime and nighttime power, the agents
properly used the daytime and nighttime power levels set forth in
the expired STA in determining that J4 Broadcasting was operating
in excess of 105% of its authorized power levels.
5 47 U.S.C. § 503(b).
6 47 C.F.R. § 1.80.
7 47 U.S.C. § 503(b)(2)(D).
8 Section 312(f)(1) of the Act, 47 U.S.C. § 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,'
... 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).
9 Section 312(f)(2) of the Act, 47 U.S.C. § 312(f)(2), which
also applies to forfeitures assessed pursuant to Section 503(b)
of the Act, provides that ``[t]he term `repeated,' ... means the
commission or omission of such act more than once or, if such
commission or omission is continuous, for more than one day.''
10 See Long Distance Direct, Inc., 15 FCC Rcd 3297, 3305
(2000); PJB Communications of Virginia, Inc., 7 FCC Rcd 2088,
2089 (1991). The Commission has also stated that if gross
revenues are sufficiently great, the existence of operating
losses does not by itself mean that a company cannot afford to
pay a forfeiture. Id.
11 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
12 47 U.S.C. § 504(a).
13 See 47 C.F.R. § 1.1914.