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                Federal Communications Commission
                     Washington, D.C. 20554

In The Matter Of                 )
                                )
SAGA COMMUNICATIONS OF NEW       )    File No. EB-01-IH-0230
ENGLAND, INC.                    )    NAL/Acct. No. 
                                )    20043208000014
Licensee of Station WLZX(FM),    )
Northampton, Massachusetts       )    Facility ID No. 46963 
                                     FRN No. 0002749406
                    ORDER ON RECONSIDERATION

Adopted: March 1, 2005                  Released: March 2, 2005  

By the Chief, Enforcement Bureau:

I. INTRODUCTION

     1.   In this Order on Reconsideration, we deny a Petition 
for Reconsideration (``Petition'')1 by Saga Communications of New 
England, Inc. (``Saga'') of a Forfeiture Order (``Forfeiture 
Order'') for $4,000.2  In the Forfeiture Order, we found that 
Saga had violated section 73.1206 of the Commission's rules3 by 
recording a telephone conversation for broadcast without first 
informing the other party to the conversation of its intention to 
do so.  The Forfeiture Order was based on a complaint by Western 
Mass Radio Company, licensee of Station WRNX(FM), Amherst, 
Massachusetts, alleging that a Saga on-air personality initiated 
and recorded a telephone conversation with an on-air personality 
of WRNX(FM) while pretending to be a listener, and later 
broadcast the conversation without authorization.4  In the 
Petition, Saga first argues that, as a company, it did not 
``willfully'' violate section 73.1206 because it had taken 
reasonable precautions to prevent such violations by its 
employees, and that these precautions and certain remedial steps 
thereafter show that it acted in good faith.  Second, Saga claims 
that the Forfeiture Order improperly considered two prior Notices 
of Violation against it in determining the forfeiture amount 
because there has been no final disposition in those proceedings.     

II. DISCUSSION 

A.  The Violation Was ``Willful'' And Saga's Claimed Good Faith 
  Does Not Relieve It Of      Liability       

     2.   Saga concedes that its employee deliberately called and 
recorded the employee of the other station without notice and 
later broadcast the recorded conversation once.5  As it did in 
response to the Notice of Apparent Liability (``NAL'') in this 
proceeding,6 Saga again claims, however, that this isolated 
broadcast of an unauthorized telephone conversation¾against its 
prior directive to employees regarding compliance with section 
73.1206¾is not a ``willful'' violation by Saga as a company when 
it had taken all reasonable precautions to avoid such violations 
by its employees.7  Saga further argues that, even if its 
employee acted ``willfully'' in violating the Commission's rule, 
Saga's good faith precautions and subsequent remedial measures to 
prevent future violations should relieve it of liability as a 
company for its employee's wrongful act.8 

     3.   We rejected these arguments in the Forfeiture Order,9 
and we do so again.10  A ``willful'' violation under section 
503(b) of the Communications Act of 1934, as amended (the 
``Act''),11 means the conscious and deliberate commission or 
omission of an act, irrespective of any intent to violate the 
law.12  Moreover, a licensee is responsible for the acts and 
omissions of its employees, and when the actions of employees 
have resulted in violations, we will not excuse licensees from 
forfeiture penalties.13  Saga's assertion that, as a company, it 
took precautions against such violations is immaterial to a 
finding under these principles that it committed a willful 
violation.  In addition, we reject Saga's argument that these 
precautions, in conjunction with certain claimed remedial 
measures, show sufficient good faith for us to cancel or reduce 
the forfeiture for the admittedly willful act of this employee.14  
We have consistently refused to consider post-investigation 
remedial measures in other cases involving potential violations 
of section 73.1206.15

B. The Forfeiture Order Properly Considered Notices Of Violation 
 In Other Proceedings In Determining The Forfeiture Amount    

     4.   The Forfeiture Order imposed a $4,000 forfeiture 
against Saga,16 which is the base forfeiture amount established 
under the Forfeiture Policy Statement for the unauthorized 
broadcast of a telephone conversation.17  In making this 
determination, we rejected Saga's contention that we should 
reduce the forfeiture because of its asserted history of overall 
compliance with the Act and the Commission's rules.  We noted 
that the Bureau had, in fact, found various Saga affiliates in 
violation of the Commission's rules in several other proceedings 
in the past four years, two of which we cited by way of 
example.18  The Petition states that in both cases, Saga had 
responded to the Notice of Violation and there was no final 
disposition of the matter.19  Accordingly, Saga maintains, the 
Bureau's reference to these prior proceedings violates section 
504(c) of the Act.20  

     5.   We properly cited the two prior violations to rebut 
Saga's claim of a record of overall compliance.  Moreover, as 
Saga must be aware, in addition to these two cited examples, 
there were three other such proceedings in the four-year period 
ending December 2002.21  Saga's reliance on section 504(c) is 
inapposite here since that provision applies only to the reliance 
of unpaid, non-court adjudicated NALs in subsequent proceedings 
and not to reliance on Notices of Violation.  In each of the NOVs 
mentioned above, the Commission staff found violations of various 
FCC rules.  The fact that the staff did not take more severe 
enforcement action (e.g., issuance of an NAL) following Saga's 
response to these NOVs does not negate the violations listed in 
the NOVs.  The Commission has consistently rejected history of 
overall compliance claims based on issuance of  NOVs in other 
cases.22  
III. ORDERING CLAUSES   

     6.   Accordingly, IT IS ORDERED THAT the Petition for 
Reconsideration filed on November 15, 2004 by Saga Communications 
of New England, Inc. IS DENIED.  

     7.   IT IS FURTHER ORDERED THAT a copy of this Order on 
Reconsideration shall be sent by Certified Mail - Return Receipt 
Requested to: Lawrence D. Goldberg, Vice President, Saga 
Communications of New England, Inc., 15 Hampton Avenue, 
Northampton, Massachusetts 01060; and its counsel, Gary S. 
Smithwick, Esquire, Smithwick & Belendiuk, P.C., 5028 Wisconsin 
Avenue, N.W., Suite 301, Washington, D.C. 20016. 

               

                         FEDERAL COMMUNICATIONS COMMISSION
                    

     
                         David H. Solomon
                         Chief, Enforcement Bureau
_________________________

1Saga Communications of New England, Inc., Petition for 
Reconsideration, filed November 15, 2004 (``Petition''). 
2Saga Communications of New England, Inc.,  Forfeiture Order, 19 
FCC Rcd 19743 (Enf. Bur. 2004) (``Forfeiture Order''). 
3Section 47 C.F.R. § 73.1206. 
4See Letter from Thomas G. Davis, President, Western Mass Radio 
Company, to Magalie Roman Salas, Secretary, Federal 
Communications Commission, dated February 1, 2001.  The WRNX(FM) 
employee was not on the air at WRNX(FM) at the time of the 
conversation.
5Petition at 2-3. 
6See Saga Communications of New England, Inc., Notice of Apparent 
Liability, 19 FCC Rcd 2741 (Enf. Bur. 2004)  (``NAL'').  
7Id. at 3-5 (cf. Saga Response to Notice of Apparent Liability 
for Forfeiture, filed March 22, 2004, at 3-7).  
8Id. at 4-5.
9See Forfeiture Order, 19 FCC Rcd at 19744-45, ¶¶ 4-6. 
10Reconsideration is appropriate only where the petitioner either 
shows a material error or omission in the original order or 
raises additional facts not known or not existing until after the 
petitioner's last opportunity to present such matters.  A 
petition that simply reiterates arguments previously considered 
and rejected will be denied.  WWIZ, Inc., 37 FCC 685, 686 (1964), 
aff'd sub nom. Lorain Journal Co. v. FCC, 351 F.2d 824 (D.C. Cir. 
1965), cert. denied, 383 U.S. 967 (1966); Pinnacle 
Communications, Inc., Memorandum Opinion and Order, 11 FCC Rcd 
15496, ¶ 1 (1996); 47 C.F.R. § 1.106(c).     
1147 U.S.C. § 503(b). 
12See 47 U.S.C. § 312(f)(1); Application for Review of Southern 
Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387, 
4387-88, ¶ 5 (1991) (``Southern Broadcasting'').  Saga 
mischaracterizes Southern Broadcasting, incorrectly stating that 
the forfeiture in that case was decided on the basis of the 
misconduct being a repeated violation and that the Commission did 
not reach the question of willfulness.  See Petition at 3-4.  On 
the contrary, willfulness was the chief basis for forfeiture in 
Southern Broadcasting, and repetition was mentioned only as an 
alternative ground.  See 6 FCC Rcd at 4387-88, ¶ 5.  
13See, e.g., Eure Family Limited Partnership, Memorandum Opinion 
and Order, 17 FCC Rcd 21861, 21863-64, ¶ 7 (2002).  See also 
Forfeiture Order, 19 FCC Rcd at 19744, ¶ 5, n. 12 & n. 13 for 
further decisions to this effect.     

14In response to the Forfeiture Order's rejection of this 
argument, 19 FCC Rcd at 19744-45 & n. 15, Saga again cites 
Infinity Broadcasting Corporation, Memorandum Opinion and Order, 
16 FCC Rcd 20156 (Enf. Bur. 2001) and Long Nine, Inc., Forfeiture 
Order, 15 FCC Rcd 15747 (Enf. Bur. 2000) to support its claim 
that it acted in good faith as a company.  Petition at 4-5 & n. 
6.  Both of these decisions, however, concern section 73.1206 
violations in which the on-air employee himself could have 
reasonably believed that the recording and broadcast were 
authorized, whereas in Saga's case, the employee could not have 
reasonably believed that they were authorized.          
15See, e.g., Mid-Missouri Broadcasting, Inc., Notice of Apparent 
Liability for Forfeiture, DA 04-3683 (Enf. Bur. rel. Nov. 24, 
2004) (regarding prank call by on air radio personality to crisis 
hotline without prior notification of intent to broadcast, Bureau 
proposed base forfeiture amount for section 73.1206 violation 
notwithstanding licensee's claim that this was an ``isolated 
incident'' and that the licensee had taken remedial measures). 
16See Forfeiture Order, 19 FCC Rcd at 19744-45, ¶ 6. 
17See The Commission's Forfeiture Policy Statement and Amendment 
of Section 1.80 of the Rules to Incorporate the Forfeiture 
Guidelines, Report and Order, 12 FCC Rcd 17087, 17115 (1997) 
(``Forfeiture Policy Statement''), recon. denied, 15 FCC Rcd 303 
(1999). 
18See Forfeiture Order, 19 FCC Rcd at 19745 & n. 17.
19Petition at 6-8.
2047 U.S.C. § 504(c).  
21See, e.g., Saga Communications of Iowa, Inc., Notices of 
Violation, EB-01-KC-228 to EB-01-KC-233 (Enf. Bur. Kansas City 
Office, Jan. 25, 2001) (various part 11and part 73 radio 
broadcasting violations, 47 C.F.R. parts 11, 73).  
Coincidentally, the multiple violations cited in this series of 
five notices, listing a total of 26 violations, occurred on the 
exact same date¾January 25, 2001¾as Saga's unauthorized recording 
and broadcast over WLZX(FM) in the instant proceeding.  
22See Forfeiture Policy Statement,  12 FCC Rcd at 17102-04, ¶¶ 
32-36; on recon., 15 FCC Rcd at 303-305, ¶¶ 3-5 (1999).