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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of ) File No. EB-98-TP-241
)
WGUL-FM Inc. ) NAL/Acct. No. 815TP0004
Radio Station WINV(AM) )
Inverness, FL )
)
MEMORANDUM OPINION AND ORDER
Adopted: April 19, 2000 Released: April 21, 2000
By the Chief, Enforcement Bureau:
1. In this Memorandum Opinion and Order (``Order''), we
deny reconsideration of and affirm the Forfeiture Order issued to
WGUL-FM, Inc., licensee of Station WINV(AM), in the amount of
seven thousand dollars ($7,000). The underlying Notice of
Apparent Liability ("NAL") proposed a forfeiture in the amount of
$10,000 against WGUL-FM, Inc. Upon evaluating WGUL-FM, Inc.'s
response to the NAL, the Compliance and Information Bureau issued
a Forfeiture Order1 which affirmed the imposition of a forfeiture
pursuant to Section 503(b) of the Communications Act of 1934, as
amended ("the Act")2 and Section 1.80 of the Commission's Rules
("the Rules")3 for willful violation of Sections 11.52(d),
11.61(a), and 73.3526(c)4 of the Rules5 but reduced the amount to
$7,000.
2. On March 25, 1998, agents from the Bureau=s Tampa,
Florida Field Office ("Tampa Office"), responding to a complaint
concerning unintentional emissions, inspected WINV(AM)=s
operating facilities. Among other things, the inspection revealed
violations of Sections 11.52(d) (EAS code and attention signal
monitoring requirements), 11.61(a) (tests of EAS procedures),
73.1590(a)(6) (equipment performance measurements), and
73.3526(c) (availability of public inspection file for public
inspection) of the Rules.
3. On March 31, 1998, the Tampa Office issued WGUL-FM, Inc.
an Official Notice of Violation ("NOV") citing the above noted
violations of the Rules. On April 14, 1998, the Tampa Office
received a written response to the NOV. On June 1, 1998, the
District Director of the Tampa Office issued an NAL to WGUL-FM,
Inc. in the amount of $10,000 for the willful and continuous
violation of Sections 11.52(d), 11.61(a), 73.1590(a)(6), and
73.3526(c) of the Rules.
4. WGUL-FM, Inc. filed a Request for Remission or
Reduction of Forfeiture. The Compliance and Information Bureau
issued a Forfeiture Order for three of the violations and ruled
that the forfeiture attributable to the Section 73.1590(a)(6)
violation for equipment performance measurements should be
eliminated. Therefore, the Forfeiture Order reduced the
forfeiture amount to $7,000 instead of the originally proposed
$10,000.
5. WGUL-FM, Inc. filed a Petition for Reconsideration
("Petition") of the Forfeiture Order. In the Petition, WGUL-FM,
Inc. argues that the forfeiture should be remitted or further
reduced. Regarding the violation of Section 11.52(d), WGUL-FM,
Inc. argues that although WRUF-FM (one of its required EAS
sources located in Gainesville, Florida) was not being monitored,
there was no risk to the listeners of WINV(AM) because of the
distance between Inverness, Florida and Gainesville, Florida.
Pursuant to the State of Florida EAS Operational Plan, WINV(AM)
is required to monitor WRUF(AM)/FM and WOGK-FM. However, during
the time of the inspection neither was being monitored.
Consequently, WGUL-FM, Inc. was clearly in violation of Section
11.52(d) of the Rules. WGUL-FM, Inc.'s opinion regarding
potential risk is not a basis for lowering the forfeiture.
6. WGUL-FM, Inc. further asserts that a news release
issued by the Compliance and Information Bureau on November 30,
1998,6 stated that the FCC would not begin its [EAS] inspection
program until February 1, 1999. WINV(AM)'s inspection, however,
was conducted on March 25, 1998, the NOV was issued on March 31,
1998, and the NAL was issued on June 1, 1998, all long before the
news release was issued. Therefore, WGUL-FM, Inc. could not have
relied on the news release. Further, agents from the Tampa
Office inspected WINV(AM) as a result of a complaint about
unintentional emissions. In investigating that complaint, the
EAS violations were discovered. Even though the news release
states that the EAS inspection program would not begin until
February 1, 1999, nothing in the news release suggested that EAS
violations discovered prior to February 1, 1999, would be
overlooked if they were found during an inspection conducted for
some other purpose, as was the case here.
7. WGUL-FM, Inc. also argues that the portion of the
forfeiture assessed for not having the public file available for
inspection should be rescinded. Section 73.3526(c) of the Rules
states that the public file shall be available for public
inspection at any time during regular business hours. At the
time of inspection the file was not available. This is a clear
violation of the rule. The Forfeiture Order addressed this issue
and determined that the licensee had not presented evidence
compelling enough to warrant reducing or rescinding the portion
of the forfeiture applicable to the public file violation. We
see no reason to reconsider that ruling.
8. Finally, we note that the $7,000 forfeiture is well
below the combined $17,000 base amount set forth in the
Forfeiture Policy Statement for EAS ($8,000) and public file
($9,000) violations.
9. Accordingly, pursuant to Section 405 of the Act, 47
U.S.C. ' 405, the petition for reconsideration of the Forfeiture
Order in this proceeding is hereby DENIED.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
14 FCC Rcd 6106 (Compl. & Inf. Bur. 1999).
2 47 U.S.C. ' 503 (b).
3 47 C.F.R. ' 1.80.
4 This violation was previously incorrectly cited as a
violation of Section 73.3526(d). The incorrect rule cite has no
impact on the case because the facts and circumstances of the
case make it clear that the rule that was violated was Section
73.3526(c); however, we are taking this opportunity to correct
the cite. This violation will be properly referred to as a
violation of Section 73.3526(c) throughout the remainder of this
document.
5 47 C.F.R. §' 11.52(d), 11.61(a), and 73.3526(c).
6 News Release, "FCC to Increase Enforcement of EAS
Regulations," Report No. CI 98-26, released November 30, 1998.