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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                         )                               
                                                                         
     In the Matter of                    )                               
                                                                         
     James J. Chladek                    )   File No. EB-08-NY-0093      
                                                                         
     Licensee of AM Radio Station WXMC   )   NAL/Acct. No. 200832380011  
                                                                         
     Parsippany-Troy Hill, New Jersey    )   FRN: 0004 8028 80           
                                                                         
     Facility ID # 29957                 )                               
                                                                         
                                         )                               



                                FORFEITURE ORDER

   Adopted: July 24, 2009 Released: July 28, 2009

   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 four thousand dollars ($4,000) to James J. Chladek
       ("Chladek"), licensee of AM radio station WXMC in Parsippany-Troy
       Hill, New Jersey, for willfully and repeatedly violating Section
       73.3526(e)(12) of the Commission's Rules ("Rules) by failing to
       maintain radio issues/programs lists in the public inspection file.

   II. BACKGROUND

    2. On his most recent license renewal application (File No.
       BRED-20060201AQA) for station WXMC, granted May 26, 2006, Chladek
       certified that the station's quarterly issues/programs lists had not
       been timely placed in the public inspection file, and that the
       licensee had taken corrective steps to ensure that all necessary
       documentation required to be kept in the file has been, or will
       immediately be, placed in the file.

    3. On March 17, 2008, an agent from the Commission's New York Office
       conducted an inspection of radio station WXMC's main studio and
       transmitter located at 1 Percypenny Lane, Parsippany, New Jersey. The
       inspection was conducted with the station's alternate chief operator
       and the manager of the leased-time entity. The agent also spoke to the
       chief operator by phone during the inspection. The agent inspected the
       station's public file and found that it did not contain any quarterly
       radio issues/programs lists. The chief operator, alternate chief
       operator, and station manager all admitted to the agent that the
       station did not have any issues/programs lists. The agent advised the
       chief operator, alternate chief operator, and station manager of the
       violation. The chief operator stated that the required items will be
       placed in the public file.

    4. On June 19, 2008, the Commission's New York Office issued a Notice of
       Apparent Liability for Forfeiture ("NAL") to Chladek for a forfeiture
       in the amount of four thousand dollars ($4,000) for willful and
       repeated violation of Section 73.3526(e)(12) of the Rules. Chladek
       filed a response to the NAL by letter dated July 9, 2008. Although
       Chladek does not dispute the agent's findings, Chladek claims that the
       chief operator and assistant operator did not know that the station
       was required to maintain issues/programs lists. Chladek therefore
       requests a waiver of the forfeiture in light of the station's unique
       public service programming and the fact that the station is now in
       compliance with the Commission's Rules.

   III. DISCUSSION

    5. The forfeiture amount proposed in this case was assessed in accordance
       with Section 503(b) of the Communications Act of 1934, as amended
       ("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. In assessing forfeitures,
       Section 503(b)(2)(D) of the Act requires that we 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. As discussed below, we have considered Chladek's response to
       the NAL in light of these statutory factors and have found that
       neither a cancellation nor a reduction of the proposed forfeiture
       amount is warranted.

    6. We reject Chladek's claim that the NAL should be cancelled because the
       chief operator and assistant operator were not aware of the
       requirement to maintain an issues/programs list. Specifically, Chladek
       states that the chief operator and assistant operator believed that
       the station was not required to maintain issues/programs lists because
       of the public service nature of the station's programming, which is
       being provided by a Hispanic religious group under a Local Marketing
       Agreement. The Commission has consistently stated, however, that
       ignorance of the law is not a mitigating factor. To the extent Chladek
       is attempting to shift responsibility for the violation to his chief
       operator and assistance operator, we note that the Commission also has
       consistently held that licensees are responsible for the acts and
       omissions of their employees and independent contractors. As the
       licensee, Chladek is ultimately responsible for the failure to
       maintain the issues/programs lists, not his chief operator, not his
       assistant operator, and not the employees of the entity with whom he
       entered into the Local Marketing Agreement. As evidenced by the
       certification in his 2006 license renewal application, Chladek is well
       aware of the station's obligations to maintain issues/programs lists.
       We therefore decline to reduce or cancel the forfeiture on this basis.

    7. We also decline to reduce or cancel the proposed forfeiture based on
       Chladek's claim that, based on the nature of WXMC's programming, it is
       appropriate to treat WXMC differently than a station with a "broad
       programming agenda." The requirement to maintain issues/programs lists
       is not linked to a station's programming content and there is no
       exemption in Section 73.3526(e)(12) for stations that provide a
       particular type of programming. Indeed, even stations licensed as
       non-commercial FM stations, which must be used for the "advancement of
       an educational program," are required to maintain issues/programs
       lists in the same manner as commercial stations.

    8. We also find that reduction or cancellation is not warranted based on
       Chladek's remedial actions. Chladek claims that a reduction or
       cancellation is warranted because the station is now maintaining an
       issues/programs list. As the Commission has stated, "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."

    9. We have examined Chladek'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 conclude that Chladek
       willfully and repeatedly violated Section 73.3526(e)(12) of the Rules
       and that the $4,000 forfeiture proposed in the NAL is warranted.

   IV. Ordering clauses

   10. 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 that James
       J. Chladek IS LIABLE FOR A MONETARY FORFEITURE in the amount of four
       thousand dollars ($4,000) for willful and repeated violation of 47
       C.F.R. S: 73.3526(e)(12).

   11. 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. James J. Chladek shall also
       send electronic notification on the date said payment is made to
       NER-Response@fcc.gov.

   12. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
       Class and Certified Mail Return Receipt Requested to James J.
       Chladek's address of record.

   FEDERAL COMMUNICATIONS COMMISSION

   G. Michael Moffitt.

   Regional Director, Northeast Region

   Enforcement Bureau

   47 C.F.R. S: 73.3526(e)(12).

   Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200832380011
   (Enf. Bur., New York Office, released June 19, 2008).

   Letter from James Chladek, to New York Field Office, dated July 9, 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) ("Forfeiture
   Policy Statement").

   47 U.S.C. S: 503(b)(2)(D).

   Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991), citing Vernon
   Broadcasting, Inc., 60 RR 2d 1275, 1277 (1986) and Fay Neel Eggleston, 19
   FCC 2d 829 (1969).

   See e.g., Eure Family Limited Partnership, Memorandum Opinion and Order,
   17 FCC Rcd 21861, 21863-64 (2002).

   As noted in paragraph 2 supra, Chladek certified in his 2006 license
   renewal application that the station's quarterly issues/programs lists had
   not been timely placed in the public inspection file, and that the
   licensee had taken corrective steps to ensure that all necessary
   documentation required to be kept in the file has been, or will
   immediately be, placed in the file.

   47 C.F.R. S: 73.503(a).

   See 47 C.F.R. S: 73.3527(e)(12)

   See Seawest Yacht Brokers, 9 FCC Rcd 6099 (1994).

   47 C.F.R. S:S: 0.111, 0.311, 1.80(f).

   See 47 C.F.R. S: 1.1914.

   (Continued from previous page)

   (continued....)

   Federal Communications Commission DA 09-1596

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   Federal Communications Commission DA 09-1596