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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-00-BS-106
Radio One Licenses, Inc. )
) NAL/Acct. No. 20013226001
Licensee of Station WBOT(FM) )
) FRN 0003-7390-34
Brockton, Massachusetts )
MEMORANDUM OPINION AND ORDER
Adopted: November 20, 2003 Released: December 3,
2003
By the Commission:
1. In this Memorandum Opinion and Order (``Order'') we
deny the August 20, 2003 Petition for Reconsideration filed by
Radio One Licenses, LLC (``Radio One''), licensee of WBOT(FM),1
Brockton, Massachusetts, of the July 22, 2003 Memorandum Opinion
and Order 2 (``MO&O'') issued in this proceeding. The MO&O
imposed a forfeiture of $8,000 against Radio One for willful
violations of the following sections of the Commission's Rules
(``the Rules''): 11.35(a) (failure to have operational Emergency
Alert System (``EAS'') equipment); 73.1125(e) (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); and 73.1800(a) (failure to maintain a station
log).3
2. Radio One now asserts that its forfeiture should be
cancelled because ``newly available evidence'' suggests that the
Bureau applied its forfeiture policies inconsistently to the
detriment of Radio One. Specifically, Radio One claims that the
Bureau treated it differently than American Family Association,
Inc. (``AFA'') because it proposed a $4,000 forfeiture against
AFA for failure to have operational EAS equipment,4 but
originally proposed and assessed an $8,000 forfeiture against
Radio One (as part of a larger amount involving other violations)
for its failure to have operational EAS equipment. Radio One
claims that the circumstances underlying the issuance of the
forfeiture are substantially similar to the circumstances of the
AFA case. Further, Radio One claims that ``there is no
indication why AFA was treated more leniently, and Radio One more
punitively, for an alleged violation of the same rule under
substantially similar facts'' and cites to Melody Music, Inc. v.
FCC5 for its prohibition against treating similarly situated
parties differently without an explanation.
3. Radio One's argument lacks merit. As a preliminary
matter, the alleged EAS violation in the AFA case was less
serious than the one here. In the AFA case, the licensee had EAS
equipment installed at station KAUF-FM but the equipment was
turned off at the time of inspection while it was undergoing
repair. Here, Radio One had no EAS equipment (operational or
otherwise) installed at station WBOT(FM). Moreover, with respect
to Radio One's challenge to the Bureau's original proposal of an
$8,000 forfeiture for the EAS violation, we note that what is
relevant at this point is the forfeiture that we have imposed,
not what the Bureau originally proposed. We also note that even
if the amount of our forfeiture attributable to the EAS violation
($5,200)6 is too high, Radio One has not explained why that
portion of the forfeiture should be cancelled rather than reduced
to $4,000 or why the remaining $2,800 of the forfeiture not
attributable to EAS should be affected at all. Accordingly, we
appropriately assessed a $5,200 forfeiture for the EAS violation
rather than a $4,000 forfeiture.
4. Accordingly, IT IS ORDERED that, pursuant to Section
405 of the Communications Act of 1934, as amended (``the Act'')7
and Section 1.106 of the Rules,8 the Petition for Reconsideration
filed by Radio One Licenses, LLC of the Commission's July 22,
2003 Memorandum Opinion and Order for NAL No. 200132260001 IS
hereby DENIED.
5. IT IS FURTHER ORDERED that, pursuant to Section 503(b)
of the Act9 and Section 1.80 of the Rules,10 Radio One Licenses,
LLC shall pay the amount of eight thousand dollars ($8,000) for
the above-stated violations within 30 days of the release date of
this Order. Payment may be made by check or money order, drawn
on a U.S. financial institution, payable to the Federal
Communications Commission. The remittance should be marked
``NAL/Acct. No. 200132260001, FRN 0003-7390-34'' and mailed to
the Federal Communications Commission, P.O. Box 73482, Chicago,
Illinois 60673-7482. 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.11
Requests for full payment under an installment plan should be
sent to: Chief, Revenue and Receivables Operations Group, 445
Twelfth Street, S.W., Washington, D.C. 20554.12
6. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by regular mail and Certified Mail Return Receipt
Requested to Pamela C. Cooper, Esq., counsel for Radio One
Licenses, LLC, at Davis Wright Tremaine, 1500 K Street, NW, Suite
450, Washington, DC 20005.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
_________________________
1 At the time this matter was initiated, Radio One Licenses,
Inc. was the licensee of WBOT(FM). Effective December 31, 2001,
Radio One Licenses, LLC became the licensee of WBOT(FM).
2 Radio One Licenses, Inc., 18 FCC Rcd 15964 (2003).
3 47 C.F.R. §§ 11.35(a), 73.1125(e), 73.1350(c)(1), 73.1560,
and 73.1800(a).
4 See American Family Association, Inc., NAL/Acct. No.
200232560027 (Enf. Bur., Kansas City Office rel. September 23,
2002) (``AFA NAL''); forfeiture cancelled and licensee admonished
for other reasons, 18 FCC Rcd 16530 (Enf. Bur. 2003). In the
cancellation order, the Bureau found that no EAS violation
occurred.
5 345 F.2d 730 (D.C. Cir. 1965).
6 The Bureau originally imposed an $11,500 forfeiture for the
four violations at issue here, including the $8,000 base amount
for the EAS violation, and then reduced the forfeiture by 20% for
Radio One's history of overall compliance to a total of $9,200,
including $6,400 for the EAS violation. Radio One Licenses,
Inc., 17 FCC Rcd 20408 (Enf. Bur. 2002). In the MO&O, based on
Radio One's good faith (albeit deficient) attempts to comply with
the EAS rule, we further reduced the forfeiture to $8,000,
including $5,200 for the EAS violation.
7 47 U.S.C. § 405.
8 47 C.F.R. § 1.106.
9 47 U.S.C. § 503(b).
10 47 C.F.R. § 1.80.
11 47 U.S.C. § 504(a).
12 47 C.F.R. § 1.1914.