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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