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 )
)
Melodynamic Broadcasting Corporation) File Number EB-02-DT-397
Radio Station WCER ) NAL/Acct. No. 200332360003
Canton, Ohio ) FRN: 0007-96-0818
)
FORFEITURE ORDER
Adopted: May 17, 2004 Released: May 19, 2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of eleven thousand dollars
($11,000) to Melodynamic Broadcasting Corporation
(``Melodynamic''), the licensee of Radio Station WCER, Canton,
Ohio for willful and repeated violation of Sections 1.89(b),
11.15, 73.51(d), 73.51(e)(2), 73.1225(d)(1), 73.1350(c)(1),
73.1560(a)(1), 73.1745 and 73.1870(b)(3) of the Commission's
Rules (``Rules'').1 Respectively, the noted violations include
failure to respond to Commission communications; failure to
maintain a copy of the Emergency Alert System (EAS) handbook;
failure to maintain a record of the dates of commencement and
termination of power determination by the indirect method;
failure to maintain a record of the efficiency factor F for each
mode of operation; failure to make available the record of the
most recent antenna impedance measurements; failure to monitor
and establish monitoring procedures and schedules to determine
compliance with operating power; failure to operate with power
not in excess of 105% of the authorized power; failure to operate
at times, or with modes or power, specified and made a part of
the license; and failure to maintain a written designation of the
chief operator.
II. BACKGROUND
2. On April 6-7, 2000, agents from the Commission's
Detroit District Office (``Detroit Office'') monitored and made
field strength measurements of WCER based on complaints that WCER
was operating with power in excess of that authorized. On April
7, 2000, the agents conducted an inspection of WCER and found
numerous violations of FCC Rules. On June 27, 2000, the Detroit
Office issued a Notice of Violation (``NOV'') to Melodynamic for
eleven rule violations, and received a July 12, 2000 written
response which did not adequately address all the violations. On
August 27, 2000, the Detroit Office issued a Continuation of NOV
to Melodynamic requesting additional information regarding eight
of the eleven items in the NOV, but received no response. On
October 30, 2000, the Detroit Office sent a Warning to
Melodynamic for failure to respond to the Continuation of NOV,
and again received no response.
3. Following receipt of more complaints indicating that
WCER was continuing to operate with power in excess of its
authorization, on June 20-21, 2002, agents monitored and made
field strength measurements of WCER and, on June 21, 2002,
conducted an inspection of WCER. As a result, the agents found
thirteen violations of FCC Rules. On July 18, 2002, the Detroit
Office issued an NOV to Melodynamic for these thirteen Rule
violations, but received no reply. On October 3, 2002, the
Detroit Office issued a Warning to Melodynamic for failure to
reply to the NOV dated July 18, 2002, but received no reply. The
record reveals a history of non-compliance, including repeated
violations from prior inspections and nonresponsiveness to
Commission notices and warnings. Finally, on December 30, 2002,
the Detroit Office released a Notice of Apparent Liability for
Forfeiture (``NAL'') to Melodynamic in the amount of eleven
thousand dollars ($11,000).2 Melodynamic filed two responses
following the release of the NAL.
4. In neither response does Melodynamic challenge or
address the findings of the NAL, that it willfully and repeatedly
violated Sections 1.89(b), 11.15, 73.51(d), 73.51(e)(2),
73.1225(d)(1), 73.1350(c)(1), 73.1560(a)(1), 73.1745 and
73.1870(b)(3) of the Rules. Rather, the first response, dated
January 2, 2003, discusses the serious illness of the station
manager and generally mentions that he has ``questions as to the
amount of the non-compliance fine and the amount of revenue the
stations are currently generating and expect to generate in the
near future.''3 The other letter, received by the Commission on
January 24, 2003, mentions the station manager's physical
problems, states that the station engineer does not work there
full time and claims that the station is in the process of
completing installation of another ground system and is
addressing interference and transmitter problems.
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''),4 Section 1.80 of the Rules,5
and The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Rules to Incorporate the Forfeiture
Guidelines.6 In examining Melodynamic'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 such other matters
as justice may require.7
6. Based on the findings of the NAL and Melodynamic's
response thereto, we find that Melodynamic's violations of
Sections 1.89(b), 11.15, 73.51(d), 73.51(e)(2), 73.1225(d)(1),
73.1350(c)(1), 73.1560(a)(1), 73.1745 and 73.1870(b)(3) of the
Rules were willful8 and repeated.9 We reject any suggestion that
the licensee is entitled to mitigation based on general efforts
underway at the station to address the noted violations. It is
well established that ``corrective action taken to come into
compliance with Commission rules or policy'' is expected, and
does not nullify or mitigate any prior forfeitures or
violations.'' 10
7. Melodynamic was directed in Paragraph 17 of the NAL to
submit financial documentation to ``specifically identify the
basis'' for any requested reduction or cancellation of a
forfeiture on the basis of inability to pay. The Commission has
determined that, in general, a licensee's gross revenues are the
best indicator of ability to pay a forfeiture11 and would not
consider forfeiture cancellation or reduction without submission
of three years of tax returns or similar financial data. To the
extent that the licensee's January 2, 2003 letter suggests that
the payment of forfeiture would impose hardship, Melodynamic has
failed to substantiate its request. There is no evidence before
us that would support cancellation of the forfeiture or a
reduction based upon inability to pay.
8. As of the adoption date of this Order, Melodynamic has
not provided evidence that it has complied with Sections 11.15,
73.51(d), 73.51(e)(2), 73.1225(d)(1), 73.1350(c)(1),
73.1560(a)(1), 73.1745 and 73.1870(b)(3) of the Rules. Based
upon the licensee's history of non-compliance and repeated
uncorrected violations from prior inspections, we will require,
pursuant to Section 308(b) of the Act ,12 that Melodynamic report
to the report to the Enforcement Bureau no more than thirty (30)
days following the release of this Order whether it has come into
compliance with Sections 11.15, 73.51(d), 73.51(e)(2),
73.1225(d)(1), 73.1350(c)(1), 73.1560(a)(1), 73.1745 and
73.1870(b)(3) by maintaining a copy of the Emergency Alert System
(EAS) handbook; maintaining a record of the dates of commencement
and termination of power determination by the indirect method;
maintaining a record of the efficiency factor F for each mode of
operation; making available the record of the most recent antenna
impedance measurements; monitoring and establishing monitoring
procedures and schedules to determine compliance with operating
power; operating with power not in excess of 105% of the
authorized power; operating at times, or with modes or power,
specified and made a part of the license; and maintaining a
written designation of the chief operator. Melodynamic's report
must be submitted in the form of an affidavit or declaration,
under penalty of perjury, signed by an officer or director of the
licensee. Melodynamic should note that its continued
noncompliance could result in additional enforcement action.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act13, and Sections 0.111, 0.311 and 1.80(f)(4) of
the Commission's Rules14, Melodynamic Broadcasting Corporation,
IS LIABLE FOR A MONETARY FORFEITURE in the amount of eleven
thousand dollars ($11,000) for its willful and repeated violation
of Sections 1.89(b), 11.15, 73.51(d), 73.51(e)(2), 73.1225(d)(1),
73.1350(c)(1), 73.1560(a)(1), 73.1745 and 73.1870(b)(3) of the
Rules.
10. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Commission's Rules15 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 credit card through the
Commission's Credit and Debt Management Center at (202) 418-1995
or 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 the NAL/Acct. No.
200332360003,
and FRN: 0007-96-0818 referenced above. Requests for full
payment under an installment plan should be sent to: Chief,
Credit and Debt Management Center, 445 12th Street, S.W.,
Washington, D.C. 20554.17
11. IT IS FURTHER ORDERED that, pursuant to Section
308(b) of the Act, Melodynamic must submit the report described
in Paragraph 8 above, no more than thirty (30) days following the
release of this Order, to the Federal Communications Commission,
Spectrum Enforcement Division, 445 12th Street, S.W., Room 4-
A223, Washington, D.C. 20554, Attention: Emmitt Carlton, Esq.
12. IT IS FURTHER ORDERED that a copy of this
Forfeiture Order shall be sent by Certified Mail, Return Receipt
Requested, and First Class Mail to Melodynamic Broadcasting
Corporation, 4537 22nd Street NW, Canton, Ohio 44708.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. §§ 1.89 (b), 11.15, 73.51(d), 73.51(e)(2),
73.1225(d)(1), 73.1350(c)(1), 73.1560(a)(1), 73.1745 and
73.1870(b)(3).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332360003 (Enf. Bur., Detroit Office, released December 30,
2002).
3 This letter, written by the manager's wife, also
apologizes for her husband's unsuccessful attempts to
contact the Commission, apparently in response to the
October 3, 2002 Warning.
4 47 U.S.C. § 503(b).
5 47 C.F.R. § 1.80.
6 12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303
(1999).
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 As provided by 47 U.S.C. § 312(f)(2), a continuous
violation is ``repeated'' if it continues for more than one day.
The Conference Report for Section 312(f)(2) indicates that
Congress intended to apply this definition to Section 503 of the
Act as well as Section 312. See H.R. Rep. 97th Cong. 2d Sess. 51
(1982). See Southern California Broadcasting Company, 6 FCC Rcd
4387, 4388 (1991) and Western Wireless Corporation, 18 FCC Rcd
10319 at fn 56 (2003).
10 Seawest Yacht Brokers, 9 FCC Rcd 6099, 6099 (1994).
11 See PJB Communications of Virginia, Inc., 7 FCC Rcd
2088, 2089 (1992).
12 47 U.S.C. § 308(b).
13 47 U.S.C. § 503(b).
14 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.