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Before the
Federal Communications Commission
Washington, D.C. 20554
In the matter of )
)
Radio Lake Placid, Inc. )
WIRD(AM) ) File Numbers: EB-02-BF-178
WLPW(FM) ) and EB-
Lake Placid, New York ) 02-BF-179
)
) NAL/Acct. No. 20033228000
) FRN: 0003 7652 52
MEMORANDUM OPINION AND ORDER
Adopted: December 23, 2003 Released: December 30,
2003
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Memorandum Opinion and Order (``Order''), we
cancel the proposed monetary forfeiture in the amount of eight
thousand dollars ($8,000), issued to Radio Lake Placid, Inc.
(``Lake Placid'') for its apparent willful and repeated violation
of Section 11.35(a) of the Commission's Rules (``Rules'').1 The
alleged violation involved Lake Placid's failure to install an
operational Emergency Alert System (``EAS'').
2. On October 3, 2002, the Resident Agent of the
Commission's Buffalo, New York Field Office (``Buffalo Office'')
issued a Notice of Apparent Liability for Forfeiture (``NAL'')2
to Lake Placid for $8,000. On November 1, 2002, Lake Placid
filed a response to the NAL.
II. BACKGROUND
3. On July 2, 2002, an agent from the Buffalo Office
inspected co-located Radio Stations WIRD(AM) and WLPW(FM) in Lake
Placid, New York. Neither WIRD or WLPW had EAS equipment
installed at the main studio. On July 10, 2002, the Buffalo
Office issued two Notices of Violation to Lake Placid for the
Section 11.35 violations found during the WIRD and WLPW
inspections.
4. On October 3, 2002, the Buffalo Office issued an NAL to
Lake Placid for its failure to have installed an operational EAS
system. On November 1, 2002, Lake Placid filed a response to the
NAL and denied it violated Section 11.35(a) of the Commission's
Rules. Lake Placid supplied declarations by Timothy F.
Nardiello, Secretary and General Manager, Radio Lake Placid, Inc.
and David Goth, a radio consulting engineer, which establish that
its EAS equipment had been removed for repair on or about May 29,
2002 and was repaired by Mr. Goth on July 12, 2002, within 45
days of its removal. Lake Placid requests the NAL be cancelled
under Section 11.35(b) because its EAS equipment was repaired or
replaced within the 60 day period authorization in that
provision.
III. DISCUSSION
5. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the Communications
Act of 1934 as amended (``Act''), 3 Section 1.80 of the Rules,4
and The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines.5 In examining Lake Placid'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 any other such
matters as justice may require.6
6. Section 11.35(a) of the Rules requires broadcast
stations to install and maintain operational EAS equipment so
that monitoring and transmitting functions are available during
times when the stations and systems are in operation. Section
11.35(b) provides that if EAS equipment becomes defective, a
broadcast station may operate without the defective equipment
pending its repair or replacement for 60 days.7 After reviewing
the record in this case, including the declarations submitted by
Lake Placid, we conclude that the evidence shows that the time
frame that it operated without the defective equipment, May 29,
2002 - July 12, 2002, did not exceed the number of days that it
is permitted to do so by the rule. We therefore conclude that
the monetary forfeiture should be cancelled.
IV. ORDERING CLAUSES
7. Accordingly, IT IS ORDERED that, pursuant to Section
504(b) of the Act,8 and Section 1.80(f)(4) of the Rules,9 the
NAL, issued to Radio Lake Placid, Inc. IS CANCELLED.
8. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by first class mail and certified mail, return receipt
requested, to Timothy Nardiello, Secretary, General Manager,
Radio Lake Placid, 17 Wilmington Road, Lake Placid, New York,
12946 and its counsel, Richard F. Swift, Esq., at Irwin, Campbell
& Tannenwald, P.C., 1730 Rhode Island Avenue, N.W., Suite 200,
Washington, D.C. 20036-3101.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. § 11.35(a).
2 Notice of Apparent Liability for Forfeiture, NAL Acct. No.
20033228000 (Enf. Bur., Buffalo Office, rel. October 3, 2002).
3 47 U.S.C. § 503(b).
4 47 C.F.R. § 1.80.
5 12 FCC Rcd. 17087 (1997), recon. denied, 15 FCC Rcd. 303
(1999).
6 47 U.S.C. § 503(b)(2)(D).
7 47 C.F.R. § 11.35(b).
8 47 U.S.C. § 504(b).
9 47 C.F.R. § 1.80(f)(4).