******************************************************** NOTICE ******************************************************** This document was converted from WordPerfect or Word to ASCII Text format. Content from the original version of the document such as headers, footers, footnotes, endnotes, graphics, and page numbers will not show up in this text version. All text attributes such as bold, italic, underlining, etc. from the original document will not show up in this text version. Features of the original document layout such as columns, tables, line and letter spacing, pagination, and margins will not be preserved in the text version. If you need the complete document, download the Word or WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) WRHC Broadcasting Corp. ) Control No. 9808327 ) NAL/Acct. No. x32080008 Licensee of Station WRHC(AM) ) Coral Gables, Florida ) Facility ID #73945 ) NOTICE OF APPARENT LIABILITY FOR FORFEITURE Adopted: March 20, 2000 Released: March 21, 2000 By the Chief, Enforcement Bureau: 1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find that WRHC Broadcasting Corp. (``WBC'') has apparently violated Sections 73.1615, 73.1620 and 73.1745 of the Commission's rules.1 The apparent violations include operation of a directional AM station in accordance with a construction permit without first requesting and obtaining authority from the Commission, commencement of program tests prior to staff approval, and operation at variance from licensed facilities. The apparent violations also resulted in interference to another station. We conclude that WBC is apparently liable for a forfeiture in the amount of twenty-two thousand five hundred dollars ($22,500). Moreover, as discussed below, it appears that WBC continues to operate its facility in violation of the Commission's rules. We hereby notify WBC that if these apparent violations do not terminate within 30 days from the release of this NAL, it may be necessary to institute further proceedings, which could result in revocation of the license for Station WRHC. BACKGROUND 2. Station WRHC is licensed to broadcast on 1550 kHz. The station's license authorizes directional operation during the day at 10 kW from a location adjacent to Biscayne Bay and at night at 500 watts from a location in Coral Gables. WBC also holds a construction permit. The permit authorizes construction on 1560 kHz with directional daytime facilities at 45 kW from a site located in Miami, which is co-located with co-owned Station WWFE. In addition, the permit authorizes construction of directional nighttime facilities at 4.4 kW from a location in Medley, Florida. The Commission last renewed WRHC's license on December 5, 1996. 3. On July 7, 1998, Interstate Broadcasting Company, Inc. (``Interstate''),2 licensee of Station WQEW, New York, New York,3 complained that WRHC had been operated at variance from its license. Specifically, Interstate alleged that, beginning in October 1996, it had begun receiving reports of nighttime interference to WQEW from a Spanish language station. After verifying the reports, Interstate investigated further and determined that the source of interference was WRHC. According to Interstate's consulting engineers, WRHC was operating omnidirectionally at night from an unauthorized location with an estimated power of 5 kW. Interstate related that after contacting WBC the interference ceased. However, Interstate further related that nighttime interference resumed in late 1997 or early 1998 and that additional requests to WBC to stop broadcasting at night produced only brief suspensions of such operation. 4. In responsive pleadings and subsequent correspondence, WBC admits that it had never operated from its licensed daytime site and that it had been evicted from its nighttime site in February 1996. WBC further acknowledges that it had begun operating WRHC from its construction permit site in the fall of 1996 on 1560 kHz both during the day and at night without Commission authorization, and that it inadvertently operated at night on several occasions without authorization. WBC also concedes that it had been operating Station WRHC since the end of December 1997 or the beginning of January 1998 with a new transmitter set at 5 kW. Additional pleadings from Interstate reflect that, although WBC temporarily ceased broadcasting after local sunset beginning July 16, 1998, it continued to broadcast for periods of time before local sunrise and after local sunset between August 1998 and February 1999. By letter to the Commission dated March 8, 1999, WBC pledged not to operate at night until such time as it had express authority to do so.4 However, WBC has made no such pledge with respect to daytime operations, and its July 1999 license application (File No. BL- 990707DC) was dismissed as patently defective by the Mass Media Bureau on August 5, 1999. WBC petitioned for reconsideration of that action, resubmitted the application, and contends that it supplied sufficient information to obtain program test authority. However, the Mass Media Bureau, by letter dated March 7, 2000, determined that the resubmitted application contained several serious discrepancies. Accordingly, the Mass Media Bureau informed WBC that further action on the application would be withheld to allow WBC to file a corrective amendment. The Mass Media Bureau further informed WBC that failure to supply the amendment would result in dismissal of its application. Although the Mass Media Bureau has not authorized program tests, as required in this situation, WBC admits that it has operated and continues to operate WRHC during the day. DISCUSSION 5. Section 73.1745 of the Commission's rules5 provides that no station shall operate at times or with modes of power other than those specified in the station's license. Section 73.1615(d) of the Commission's rules, 47 C.F.R. § 73.1615(d), provides that licensees of AM stations holding a construction permit which authorizes both a change in frequency and directional facilities must request and obtain authority from the Commission prior to using the facilities authorized by the permit. Finally, Section 73.1620(a)(4) of the Commission's rules, 47 C.F.R. § 73.1620(a)(4), provides that AM permittees with a directional antenna that have requested program test authority may not commence program test operations prior to the issuance of staff approval. The information available indicates that WBC has not operated Station WRHC in accordance with its license since at least the date of its last renewal. WBC acknowledges that it has not used its licensed daytime facilities since their destruction by Hurricane Andrew, and it appears that WBC has not used the licensed nighttime facilities since its eviction from that site. Nevertheless, and despite the absence of special temporary authorization (``STA'')6 or any other authority, WBC has apparently broadcast on WHRC from its daytime construction permit site on 1560 kHz from the beginning of the present license term to the present. Compounding matters, it appears that at various times up to February 1999, WBC has operated WRHC at night at an unauthorized power, which has resulted in interference to WQEW. Finally, even when WBC sought program test authority, it did not wait for staff approval before operating with the facilities described in its license application, as required in these circumstances. 6. Section 503(b) of the Communications Act of 1934, as amended (the ``Act''), 47 U.S.C. § 503(b)(1),7 provides that any person who willfully or repeatedly fails to comply with the terms and conditions of his license or the Commission's rules shall be liable for a forfeiture penalty. In this context, the term ``willful'' means that the violator knew it was taking the action in question, irrespective of any intent to violate the Commission's rules,8 while ``repeatedly'' means more than once.9 Considering the information before us, it appears that WBC knew that it was operating WRHC at variance from its license; that, for years, WBC had not requested or received permission to operate with the facilities specified in its permit; and that, even when WBC had submitted such a request, it continued to operate the facilities despite the fact that it did not receive staff approval as required. It thus appears that its violations were not only willful but also were intentional. It further appears that each of the violations described occurred on more than one day; thus, they were repeated. 7. In assessing a forfeiture, we take into account the statutory factors set forth in Section 503(b)(2)(D) of the Act,10 which include 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. The Commission's forfeiture guidelines currently establish base amounts of $7,000 for interference, $4,000 for using an unauthorized frequency, and $4,000 for operation at an unauthorized location.11 The guidelines include ``upward adjustment criteria,'' such as intentional violation and repeated or continuous violation. After considering the information before us, we believe the base amounts, which total $15,000, should be adjusted upward by 50 percent to take into account the licensee's apparently intentional and continuous violations. In this regard, the licensee continued to operate from its daytime construction permit site, both during the day and often at night, even after it had been specifically put on notice (and then admitted) that its operations were not authorized. 8. Finally, we are concerned that WBC has continued to operate its facility without appropriate authorization in apparent violation of our rules. We hereby notify WBC that if its operation of Station WRHC continues without a license, program test authority or STA,12 for more than 30 days after release of this NAL, it may be necessary to institute further proceedings pursuant to Section 312 of the Act.13 Such proceedings could lead to issuance of an order revoking the license for Station WRHC. In this regard, we emphasize that the mere pendency of the application or the filing of a request for program test authority or STA will not suffice to avoid further enforcement action. Rather, the application or request for program test authority or STA must be granted or WBC must terminate all unauthorized operation of Station WRHC. Otherwise, WBC risks loss of the license for Station WRHC as well as additional forfeiture penalties. ORDERING CLAUSES 9. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the Act,14 and Sections 0.111, 0.311 and 1.80 of the Commission's rules,15 WRHC Broadcasting Corp. is hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the amount of twenty-two thousand five hundred dollars ($22,500) for violating the terms and conditions of its license and the Commission's rules requiring operation within the parameters set forth in the license, and requiring express permission prior to a permittee's operation or commencement of program tests involving directional AM facilities and/or a change in frequencies. 10. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the Commission's rules,16 within thirty days of this NOTICE OF APPARENT LIABILITY, WRHC Broadcasting Corp. SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. 11. Payment of the forfeiture may be made by credit card through the Commission's Credit and Debt Management Center at (202) 418-1995 or by mailing a check or similar instrument, payable to the order of the Federal Communications Commission, to the Forfeiture Collection Section, Finance Branch, Federal Communications Commission, P.O. Box 73482, Chicago, Illinois 60673-7482. The payment should note the NAL/Acct. No. referenced above. 12. The response, if any, must be mailed to the Federal Communications Commission, Enforcement Bureau, Investigations and Hearings Division, 445 12th Street, S.W., Washington, D.C. 20554 and MUST INCLUDE THE NAL/Acct. No. referenced above. 13. The Commission will not consider reducing or canceling a forfeiture in response to a claim of inability to pay unless the respondent submits: (1) federal tax returns for the most recent three-year period; (2) financial statements prepared according to generally accepted accounting practices (``GAAP''); or (3) some other reliable and objective documentation that accurately reflects the respondent's current financial status. Any claim of inability to pay must specifically identify the basis for the claim by reference to the financial documentation submitted. 14. Requests for payment of the full amount of this Notice of Apparent Liability under an installment plan should be sent to: Chief, Credit and Debt Management Center, 445 12th Street, S.W., Washington, D.C. 20554.17 15. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT LIABILITY shall be sent by Certified Mail Return Receipt Requested to WRHC Broadcasting Corp., in care of Lawrence M. Miller, Esq., Schwartz, Woods & Miller, 1350 Connecticut Avenue, N.W., Suite 300, Washington, D.C. 20036-1717. FEDERAL COMMUNICATIONS COMMISSION David H. Solomon Chief, Enforcement Bureau _________________________ 1 47 C.F.R. §§ 73.1615, 73.1620 and 73.1745. 2 On November 30, 1998, following Commission approval of a pro forma assignment, the licensee became The New York Times Electronic Media Company. For ease of reference, we will continue to refer to the licensee of Station WQEW as Interstate. 3 WQEW is a Class A station operating on 1560 kHz at 50 kW. See Sections 73.21(a)(1) and 73.25(b) of the Commission's rules, 47 C.F.R. §§ 73.21(a)(1) and 73.25(b). 4 Apparently, WBC has honored this pledge inasmuch as Interstate has submitted no further complaints. 5 47 C.F.R. § 73.1745. 6 See Section 73.1635 of the Commission's rules, 47 C.F.R. § 73.1635. Although WBC asserts that it had STA to operate Station WRHC during the day from its nighttime site, Commission records reflect that the only STA accorded the station was given to WBC's predecessor and that it expired on November 30, 1992. 7 47 U.S.C. § 503(b)(1). See also Section 1.80(a)(1) and (2), 47 C.F.R. § 1.80(a)(1) and (2). 8 See Jerry Szoka, 14 FCC Rcd 9857, 9865 (1999); Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991). 9 See Hale Broadcasting Corp., 79 FCC 2d 169, 171 (1980). 10 47 U.S.C. § 503(b)(2)(D). 11 See 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). 12 In this regard, we note that WBC has the option of requesting STA from the Mass Media Bureau's Audio Services Division pending action on its application. 13 47 U.S.C. § 312. 14 47 U.S.C. § 503(b). 15 47 C.F.R. §§ 0.111, 0.311, 1.80. 16 47 C.F.R. § 1.80. 17 See 47 C.F.R. § 1.1914.