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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
)
RJM Communications, Inc. ) File No. EB-02-TP-436
Kalamazoo, Michigan ) NAL/Acct. No. 200332700026
) FRN 0008028938
)
FORFEITURE ORDER
Adopted: January 30, 2004 Released: February 3,
2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of one thousand five hundred
dollars ($1,500) to RJM Communications, Inc. (``RJM''), licensee
of radio station WGSR(AM), Fernandina Beach, Florida, for willful
and repeated violation of Sections 73.1125 and 73.1745(a) of the
Commission's Rules (``Rules'')1 and for willful violation of
Section 73.3526(c)(1) of the Rules.2 The noted violations
involve RJM's failure to maintain a presence at its main studio,
operation in excess of authorized nighttime operating power, and
failure to make station WGSR(AM)'s public inspection file
available during regular business hours.
II. BACKGROUND
2. On July 15, 2003, the Commission's Tampa, Florida
Office (``Tampa Office'') released a Notice of Apparent Liability
for Forfeiture (``NAL'') to RJM for a forfeiture in the amount of
twenty-one thousand dollars ($21,000).3 RJM filed a response on
August 1, 2003. In its response, RJM does not challenge the
findings of the NAL. Rather, RJM seeks reduction or cancellation
of the forfeiture based upon its inability to pay.
II. DISCUSSION
3. 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 RJM'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
4. Based on the findings of the NAL and RJM's response
thereto, we find that RJM's violation of Sections 73.1125 and
73.1745(a) of the Rules was willful8 and repeated.9 We also find
that RJM's violation of Section 73.3526(c)(1) of the Rules was
willful. In support of its request for cancellation, RJM submits
federal income tax returns for tax years 2000, 2001, and 2002 to
demonstrate its inability to pay the monetary forfeiture. After
reviewing the financial documentation, we conclude that reduction
of the $21,000 forfeiture to $1,500 is warranted in this case.
5.There is no evidence that RJM is in compliance with
Sections 73.1125, 73.1745(a) and 73.3526(c)(1) of the Rules with
respect to main studio staffing, excess nighttime operating
power, and the public inspection file. Accordingly, we will
require, pursuant to Section 308(b) of the Act,10 that RJM report
to the Enforcement Bureau no more than thirty (30) days following
the release of this Order how it has achieved compliance with
Sections 73.1125, 73.1745(a), and 73.3526(c)(1) of the Rules.
RJM's report must be submitted in the form of an affidavit signed
by an officer or director of RJM.
IV. ORDERING CLAUSES
6. 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,11 RJM Communications, Inc. IS LIABLE FOR A MONETARY
FORFEITURE in the amount of one thousand five hundred dollars
($1,500) for its violation of Sections 73.1125, 73.1745(a), and
73.3526(c)(1) of the Rules.
7. IT IS FURTHER ORDERED that, pursuant to Section
308(b) of the Act, RJM must submit the report described in
Paragraph 5, above, within no more than thirty (30) days
following the release of this Order, to Federal Communications
Commission, Enforcement Bureau, Spectrum Enforcement Division,
445 12th Street, S.W., Room 7-A728, Washington, D.C. 20554,
Attention: Jacqueline Ellington, Esq.
8.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.
200332700026 and FRN 0008028938. 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.
20554.13
9.IT IS FURTHER ORDERED that a copy of this Order shall be
sent by First Class and Certified Mail Return Receipt Requested
to RJM Communications, Inc., 1218 S. Park Street, Kalamazoo,
Michigan 49001, and its counsel, John Neely, Esq. at Miller and
Neely, P.C., 6900 Wisconsin Avenue, Suite 704, Bethesda, Maryland
20815.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. §§ 73.1125 and 73.1745(a).
2 47 C.F.R. § 73.3526(c)(1).
3 See Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332700026 (Enf. Bur. Tampa Office, July 15, 2003).
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 47 U.S.C. § 308(b).
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.