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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of )
File Number EB-07-BF-020
Viva Communications Group, LLC )
NAL/Acct. No.
Licensee of Station WSDE ) 200832280002
Cobleskill, New York ) FRN 0011157781
Facility ID # 4002 )
)
FORFEITURE ORDER
Adopted: October 24, 2008 Released: October 28, 2008
By the Regional Director, Northeast Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of twelve thousand eight hundred dollars ($12,800) to Viva
Communications Group, LLC ("Viva"), licensee of AM radio station WSDE,
Cobleskill, New York, for willfully and repeatedly violating Sections
11.35(a), 73.1560(a), 73.1745(a), and 73.3526(e)(12) of the
Commission's Rules ("Rules") by failing to maintain operational
Emergency Alert System ("EAS") equipment, failing to sign off at local
sunset time, failing to maintain daytime operating power at more than
90% of the authorized power, and failing to maintain a complete public
inspection file.
2. On December 20, 2007, the Buffalo Field Office issued a Notice of
Apparent Liability for Forfeiture ("NAL") in the amount of $16,000 to
Viva for failure to maintain operational EAS equipment, failure to
sign off at local sunset time, failure to maintain daytime operating
power at more than 90% of the authorized power, and failure to
maintain a complete public inspection file. In this Order, we consider
Viva's arguments that the forfeiture amount should be cancelled in
light of the remedial efforts taken by Viva prior to the inspection by
FCC agents.
II. BACKGROUND
3. On May 9, 2007, in response to a complaint, an agent in the FCC's
Buffalo Office began an investigation of AM station WSDE's operations
in Cobleskill, NY. WSDE is authorized to operate with a power of 1000
watts daytime and is required to cease operating at local sunset time,
which is 7:15 PM Eastern Standard Time for the month of May. The agent
monitored WSDE before and after local sunset and determined that the
station remained on the air with programming after local sunset time.
The agent conducted field strength measurements before and after local
sunset and determined that the radio station operated at the same
power level before and after sunset.
4. On the morning of May 10, 2007, the agent monitored radio station WSDE
before and after sunrise and determined that the station was on the
air with programming before sunrise. The agent conducted field
strength measurements before and after sunrise and determined the
radio station operated at the same power level before and after
sunrise.
5. Later that morning, the FCC agent visited WSDE's main studio and met
with the manager of the station, who stated that the station had been
operating after sunset for quite some time. After conducting the
inspection at the main studio, the manager and the agent went to the
transmitter site. The agent determined that the operating power of the
station was only 33% of the authorized power, i.e., 333 watts. The
manager stated that the station had technical problems and that he
wanted to keep the power low until the problems were corrected.
6. The agent later returned to WSDE's main studio with the manager. The
agent asked the operator on duty for the station's EAS logs. The
operator on duty stated that the station does not have an EAS log. The
operator on duty further stated that he has been employed at the
station for approximately three years and has never conducted an EAS
test. The operator further stated that he did not know the procedure
for conducting an EAS test and does not recall the last time the
station received an EAS test. The agent inspected the EAS equipment
and determined that it was not functioning; no stations could be
detected on the EAS receiver. The agent also found that the EAS
printer was not attached to the EAS equipment. The agent also reviewed
the station's public inspection file and found that it did not contain
any issues/ programs lists for the last two years
7. On December 20, 2007, the Buffalo Field Office issued a NAL in the
amount of $16,000 to Viva for failure to maintain operational EAS
equipment, failure to sign off at local sunset time, failure to
maintain daytime operating power at more than 90% of the authorized
power, and failure to maintain a complete public inspection file. In
its response, Viva does not dispute the findings in the NAL, but
requests that we cancel the forfeiture in light of its remedial
efforts.
III. DISCUSSION
8. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act, Section 1.80 of the Rules, and The
Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines ("Forfeiture
Policy Statement"). In examining Viva'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.
9. Viva does not dispute the findings in the NAL, but seeks cancellation
of the proposed forfeiture based on efforts it took to correct the
violations. Although we do not believe that cancellation of the
forfeiture in its entirety is warranted, we find that a reduction in
the forfeiture amount is appropriate in light of Viva's remedial
efforts. The Commission consistently has held that reductions are
appropriate based on good faith efforts to correct or remedy
violations prior to the Commission's involvement. Viva submitted
documentation, including an invoice from a consulting engineer,
showing that it had taken steps to correct the violations prior to the
agent's inspection on May 10, 2007. We therefore conclude that a
reduction to $12,800 is warranted.
10. We have examined Viva's responses to the NAL pursuant to the statutory
factors above, and in conjunction with the Forfeiture Policy
Statement. As a result of our review, we conclude that a reduction of
the proposed forfeiture to $12,800 is warranted, based on Viva's
remedial efforts prior to the agent's inspection.
IV. ORDERING CLAUSES
11. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), and Sections 0.111,
0.311 and 1.80(f)(4) of the Commission's Rules, Viva Communications
Group, LLC, IS LIABLE FOR A MONETARY FORFEITURE in the amount of
$12,800 for willfully and repeatedly violating Sections 11.35(a),
73.1560(a), 73.1745(a), and 73.3526(e)(12) 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. Payment of the forfeiture must be made
by check or similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the NAL/Account
Number and FRN Number referenced above. Payment by check or money
order may be mailed to Federal Communications Commission, P.O. Box
979088, St. Louis, MO 63197-9000. Payment by overnight mail may be
sent to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005
Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may be
made to ABA Number 021030004, receiving bank TREAS/NYC, and account
number 27000001. For payment by credit card, an FCC Form 159
(Remittance Advice) must be submitted. When completing the FCC Form
159, enter the NAL/Account number in block number 23A (call sign/other
ID), and enter the letters "FORF" in block number 24A (payment type
code). Requests for full payment under an installment plan should be
sent to: Chief Financial Officer -- Financial Operations, 445 12th
Street, S.W., Room 1-A625, Washington, D.C. 20554. Please contact
the Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov with any questions regarding payment procedures.
Viva Communications Group, LLC, shall also send electronic
notification on the date said payment is made to NER-Response@fcc.gov
13. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to Viva
Communications Group, LLC, at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
G. Michael Moffitt
Regional Director, Northeast Region
Enforcement Bureau
47 C.F.R. S:S: 11.35(a), 73.1560(a), 73.1745(a), 73.1870(a), and
73.3526(e)(12).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200832280002
(Enf. Bur., Philadelphia Office, rel. December 20, 2007).
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200832280002
(Enf. Bur., Philadelphia Office, rel. December 20, 2007).
See Letter from Aaron K. Bikofsky, Counsel for Viva, to FCC Buffalo
Office, dated January 16, 2008. At the request of FCC staff, Viva
submitted a supplemental response to the NAL. See Letter from Aaron K.
Bikofsky, Counsel for Viva, to Sharon Webber, Regional Counsel for
Northeast Region, dated August 14, 2008.
47 U.S.C. S: 503(b).
47 C.F.R. S: 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 U.S.C. S: 503(b)(2)(E).
See e.g., Sutro Broadcasting Corporation, 19 FCC Rcd 15274, 15277 (2004)
(stating that the Commission will generally reduce the assessed forfeiture
amount "based on the good faith corrective efforts of a violator when
those actions were taken prior to Commission notification of the
violation").
47 U.S.C. S: 503(b), 47 C.F.R. S:S: 0.111, 0.311, 1.80(f)(4), 11.35(a),
73.1560(a), 73.1745(a), 73.3526(e)(12).
47 U.S.C. S: 504(a).
Federal Communications Commission DA 08-2355
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Federal Communications Commission DA 08-2355