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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Clamor Broadcasting Network ) File Number EB-04-SJ-042
Inc. ) NAL/Acct. No.
Licensee of WJVP-FM ) 200532680001
Bayamon, PR 00958 )
) FRN 0008403388
FORFEITURE ORDER
Adopted: October 17, 2005
Released: October 19, 2005
By the Regional Director, South Central Region, Enforcement
Bureau:
I. INTRODUCTION
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of seven thousand dollars
($7,000) to Clamor Broadcasting Network Inc. (``Clamor''),
licensee of non-commercial educational station WJVP-FM,
Culebra, Puerto Rico, for willful and repeated violation of
Section 73.1125 of the Commission's Rules (``Rules'').1 The
noted violation involves Clamor's failure to maintain the
station's main studio within the community of license,
within the principal community contour of any broadcast
station licensed to the station's community of license, or
within twenty-five miles from the reference coordinates of
the center of its community of license. We also cancel the
proposed forfeiture issued to Clamor for failing to maintain
operational Emergency Alert System (``EAS'') equipment in
violation of Section 11.35 of the Rules.
II. BACKGROUND
2. In March of 2000, an agent from the Commission's
San Juan, Puerto Rico Resident Agent Office of the
Enforcement Bureau (``San Juan Office'') inspected radio
station WJVP-FM. The San Juan Office issued to Clamor a
Notice of Violation for failure to maintain a main studio in
violation of Section 73.1125 of the Rules and failure to
maintain operational EAS equipment in violation of Section
11.35 of the Rules.
3. On August 11, 2004, an agent from the San Juan
Office inspected radio station WJVP-FM at their studio
located on Granada Street, Urb. Alahambra, Bayamon, Puerto
Rico. The station did not have the required EAS equipment
installed. According to the operator, the station's
engineer had removed it during March or April of 2004. When
the agent requested to see the EAS log, the operator
provided a log that appeared to belong to another station
WKVN-FM, Levittown, Puerto Rico. The last test listed in
this log was performed on March 10, 2004. The station's
only studio was located on Granada Street, Urb. Alahambra,
Bayamon, Puerto Rico, outside of Culebra, the station's
community of license. The studio was approximately 16 miles
outside the station's principal community contour, and there
were no other broadcast stations licensed to Culebra.
Finally, the studio was also more than 25 miles
(approximately 65 miles) from the reference coordinates of
the center of its community of license.
4. On November 16, 2004, the San Juan Office issued a
Notice of Apparent Liability for Forfeiture to Clamor in the
amount of fifteen thousand dollars ($15,000) for the
apparent willful and repeated violation of Sections 11.35
and 73.1125 of the Rules.2 Clamor filed a response to the
NAL requesting reconsideration of the proposed forfeiture on
December 22, 2004.3 Clamor's response included additional
information and statements regarding the August inspection.
III. DISCUSSION
5. The proposed forfeiture amount in this case was
assessed in accordance with Section 503(b) of the 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, 12 FCC Rcd 17087
(1997), recon. denied, 15 FCC Rcd 303 (1999) (``Forfeiture
Policy Statement''). In examining Clamor'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.6
6. Section 11.35 of the Rules requires that EAS
Encoders, EAS Decoders and Attention Signal generating and
receiving equipment used as part of the EAS be installed so
that the monitoring and transmitting functions are available
during the times the stations and systems are in operation.7
In its response to the NAL, Clamor claims that station WJVP-
FM had operational EAS equipment installed at its auxiliary
studio in Fajardo, Puerto Rico. Clamor also states that its
Station Engineer, who was aware of this fact, was out sick
on August 11, 2004. On January 20, 2005, an agent was able
to confirm that station WJVP-FM had operational EAS
equipment installed at its auxiliary studio and observe the
station's EAS logs dating back to August 11, 2003.
Accordingly, based on Clamor's subsequent statements and our
confirmation of this new information, we have determined
there was no violation of the EAS Rules, and we cancel the
proposed forfeiture.8
7. Section 73.1125 of the Rules requires broadcast
stations to maintain a studio at one of the following
locations: (1) within the station's community of license;
(2) at any location within the principal community contour
of any broadcast station licensed to the station's community
of license; or (3) within twenty-five miles from the
reference coordinates of the center of its community of
license.9 In its response to the NAL, Clamor states that it
received a waiver of Section 73.1125 on November 2, 2000 to
operate as a satellite of its commonly owned non-commercial
educational station WKVN-FM, Levittown, Puerto Rico.
According to the Commission's database, however, Clamor
applied for an assignment of its license for station WKVN-FM
on August 28, 2003 and that assignment was consummated on
April 7, 2004. In its response to the NAL and on January
20, 2005, Clamor admitted that it sold station WKVN-FM
before July 2004. When Clamor sold station WKVN-FM, station
WJVP-FM no longer operated under the November 2, 2000 waiver
and was required to comply with Section 73.1125 of the
Rules. While Clamor is building a new main studio within
its service contour, station WJVP-FM's only working studio
is currently located on Granada Street, Urb. Alahambra,
Bayamon, Puerto Rico. The Bayamon studio is not located
within any of the three locations specified in Section
73.1125 of the Rules. Thus, based on the evidence, we find
that Clamor willfully10 and repeatedly11 violated Section
73.1125 of the Rules by failing to maintain the station's
main studio within the community of license, within the
principal community contour of any broadcast station
licensed to the station's community of license, or within
twenty-five miles from the reference coordinates of the
center of its community of license.
8. Clamor also asserts that is unable to pay the
$7,000 proposed forfeiture for the main studio violation.12
The Commission has determined that, in general, an entity's
gross revenues are the best indicator of its ability to pay
a forfeiture.13 After reviewing Clamor's claim and
supporting documentation, we find that a reduction of the
forfeiture based on inability to pay is not warranted.
9. We have examined Clamor's response to the NAL
pursuant to the statutory factors above, and in conjunction
with the Forfeiture Policy Statement. As a result of our
review, we cancel the proposed forfeiture associated with
the violation of Section 11.35 of the Rules, but conclude
that Clamor willfully and repeatedly violated Section
73.1125 of the Rules. We find no basis for cancellation or
reduction of the $7,000 forfeiture proposed for this
violation.
IV. ORDERING CLAUSES
10. Accordingly, IT IS ORDERED that, pursuant to
Section 503(b) of the Communications Act of 1934, as
amended, and Sections 0.111, 0.311 and 1.80(f)(4) of the
Commission's Rules,14 the forfeiture in the amount of eight
thousand dollars ($8,000) for violation of Section 11.35 of
the Rules proposed in the November 16, 2004 Notice of
Apparent Liability issued to Clamor Broadcasting Network
Inc. IS CANCELED.
11. IT IS FURTHER ORDERED that, pursuant to Section
503(b) of the Communications Act of 1934, as amended, and
Sections 0.111, 0.311 and 1.80(f)(4) of the Commission's
Rules, Clamor Broadcasting Network Inc. IS LIABLE FOR A
MONETARY FORFEITURE in the amount of seven thousand dollars
($7,000) for willfully and repeatedly violating Section
73.1125 of the Rules.
12. 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.15 Payment by check or money
order may be mailed to Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. Payment by overnight
mail may be sent to Bank One/LB 73482, 525 West Monroe, 8th
Floor Mailroom, Chicago, IL 60661. Payment by wire transfer
may be made to ABA Number 071000013, receiving bank Bank
One, and account number 1165259. The payment should note
NAL/Acct. No. 200532680001, and FRN 0008403388. Requests
for full payment under an installment plan should be sent
to: Associate Managing Director, Financial Operations, 445
12th Street, S.W., Room 1A625, Washington, D.C. 20554.16
13. IT IS FURTHER ORDERED that a copy of this Order
shall be sent by First Class and Certified Mail Return
Receipt Requested to Clamor Broadcasting Network Inc. at its
record of address.
FEDERAL COMMUNICATIONS
COMMISSION
Dennis P. Carlton
Regional Director, South
Central Region
Enforcement Bureau
_________________________
147 C.F.R. § 73.1125.
2Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200532680001 (Enf. Bur., San Juan Office, November 16,
2004) (``NAL'').
3Clamor states it misplaced the NAL and did not review the
NAL until December 20, 2004. Clamor's request to accept
its late-filed response was accepted by the Bureau.
447 U.S.C. § 503(b).
547 C.F.R. § 1.80.
647 U.S.C. § 503(b)(2)(D).
747 C.F.R. § 11.35(a).
8The base forfeiture for failure to have installed
operational EAS equipment is $8,000. See 47 C.F.R. § 1.80.
947 C.F.R. § 73.1125.
10Section 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).
11As 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).
12Clamor's request to accept its late-filed response was
accepted by the Bureau. Its response to the NAL asserted
it could not pay the proposed $15,000 forfeiture. On
January 20, 2005, Clamor also asserted it could not pay the
$7,000 proposed forfeiture for the main studio violation.
13See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088,
2089 (1992) (forfeiture not deemed excessive where it
represented approximately 2.02 percent of the violator's
gross revenues); Local Long Distance, Inc., 16 FCC Rcd
24385 (2000) (forfeiture not deemed excessive where it
represented approximately 7.9 percent of the violator's
gross revenues); Hoosier Broadcasting Corporation, 15 FCC
Rcd 8640 (2002) (forfeiture not deemed excessive where it
represented approximately 7.6 percent of the violator's
gross revenues).
1447 U.S.C. § 503(b); 47 C.F.R. §§ 0.111, 0.311,
1.80(f)(4).
1547 U.S.C. § 504(a).
16See 47 C.F.R. § 1.1914.