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Federal Communications Commission
Washington, D.C. 20554
In the Matter of ) File No. EB-98-TP-241
WGUL-FM, Inc. ) NAL/Acct. No. 815TP0004
Inverness, Florida )
MEMORANDUM OPINION AND ORDER
Adopted: November 29, 2000 Released: December 5,
By the Commission:
1. In this Order, we grant in part and deny in part the
May 19, 2000 application for review filed by WGUL-FM, Inc.,
licensee of Station WINV(AM), of the Memorandum Opinion and
Order1 issued by the Enforcement Bureau in this proceeding.
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 the former Compliance and Information Bureau
("CIB") found WGUL-FM, Inc. liable for a monetary forfeiture in
the amount of $7,000 for willful and continuous violation of rule
sections 11.52(d)4 (EAS code and attention signal monitoring
requirements), 11.61(a)5 (tests of EAS procedures), and
73.3526(c)6 (availability of public inspection file for public
inspection). For the reasons discussed below, we lower the
forfeiture to $5,000.
2. In response to a complaint concerning unintentional
emissions, the Tampa Florida Field Office ("Field Office")
inspected WINV(AM)'s operating facilities. The inspection
revealed the aforementioned violations. On March 31, 1998, the
Field Office issued an Official Notice of Violation ("NOV") for
the violations. On April 14, 1998, the Field Office received a
written response to the NOV from Carl J. Marcocci, Chairman and
CEO of WGUL-FM, Inc. Mr. Marcocci acknowledged the technical and
operational deficiencies that led to the violations.
3. On June 1, 1998, the District Director of the Tampa
Field Office issued a Notice of Apparent Liability ("NAL") to
WGUL-FM, Inc. in the amount of $10,000 for willful and continuous
violation of Sections 11.52(d), 11.61(a), 73.1590(a)(6)7 and
73.3526(c) of the Rules. WGUL-FM, Inc. filed a Request for
Remission or Reduction of Forfeiture. CIB issued a Forfeiture
Order8 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. A Memorandum Opinion and
Order released on April 21, 2000 affirmed the forfeiture on
4. In its application for review, WGUL-FM, Inc. again
argues that the forfeiture should be remitted or further reduced.
Regarding the violation of Section 11.52(d), WGUL-FM, Inc. argues
that, although 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 it was monitoring the
National Weather Service. WGUL-FM, Inc. further relies on a news
release issued by CIB on November 30, 1998 that stated that the
FCC would not begin its [EAS] inspection program until February
1, 1999.9 Consequently, it claims there should be no forfeiture
for violation of Section 11.52(d) of the Rules. It also contends
that by rejecting WGUL-FM, Inc.'s reliance upon the news release,
the Enforcement Bureau approved a scheme by which stations were
given two months to come into compliance with EAS standards,
except for those stations which were caught violating the rules
before the warning was given. This, states WGUL-FM, Inc.,
contravenes the "equal treatment" requirement of Melody Music,
Inc. v. FCC.10 Finally, WGUL-FM, Inc. argues that the portion of
the forfeiture assessed for not having the public file available
for inspection should be rescinded because the owner of the
Citrus Hearing Center, the establishment that housed the file,
inexplicably decided to close the afternoon of the inspection and
ignored a request by WINV(AM)'s licensee to return in order to
allow inspection of the file.11 WGUL-FM, Inc. asserts that
because this was a one-time violation and because it promptly
moved the public inspection file to the public library, reduction
or remission is warranted.
5. WGUL-FM, Inc. requests the Commission to consider its
history with WINV(AM). WGUL-FM, Inc. had been operating WINV(AM)
pursuant to a local marketing agreement prior to becoming the
licensee and was responsible for its resumption of operation one
day before the license would have expired by operation of Section
312(g) of the Act.12 Through the efforts of WGUL-FM, Inc.,
WINV(AM) obtained special temporary authority to operate with a
temporary tower lower than that authorized, filed a late-filed
application for renewal of its license, filed an application for
assignment of license to WGUL-FM, Inc., and filed an application
for change in city of license. Finally, WGUL-FM, Inc. points out
that it had only been the licensee for about two months prior to
the inspection,13 and even then was the licensee subject to an
outstanding appeal of the grant of the assignment and renewal
6. Section 73.3526(c) of the Rules requires the public
inspection file to be made available for public inspection at any
time during regular business hours. In this case, while the file
was not available at the time of inspection, and thus the
licensee violated the rule, we conclude that the forfeiture
should be lowered to reflect the licensee's good faith efforts to
comply with the rule. We have no reason to disbelieve the
licensee's statement that the closure of the building housing the
public file on the day at issue was "[i]nexplicable" or that it
promptly attempted to get the building open. We believe it is
appropriate to lower the overall forfeiture by $2,000 to reflect
the licensee's good faith efforts to comply.15
7. Pursuant to the State of Florida EAS Operational Plan,
WINV(AM) is required to monitor WRUF(AM/FM) and WOGK-FM. At the
time of the inspection, neither was being monitored. This was a
violation of Section 11.52(d) of the Rules. As the Enforcement
Bureau determined, WINV(AM)'s monitoring of other sources and the
licensee's opinion regarding potential risk to listeners
resulting from its failure to monitor the assigned sources is not
a basis for lowering the forfeiture.
8. WGUL-FM, Inc.'s reliance upon the November 30, 1998
news release to support its position that its forfeiture should
be remitted is unpersuasive. Agents from the Tampa Office
inspected WINV(AM) as a result of a complaint about unintentional
emissions. The inspection took place on March 25, 1998,
approximately eight months before the news release. Although
the news release says that no EAS inspections would take place
between November 30, 1998 and February 1, 1999, nothing in the
news release suggested that EAS violations discovered prior to
February 1, 1999 (let alone, as here, prior to November 30, 1998)
would be overlooked if they were found during an inspection
conducted for some other purpose, as was the case here. The EAS
inspection program discussed in the news release was prospective.
It was intended to warn licensees of upcoming EAS inspections,
and provided a two-month window for licensees then in non-
compliance to come into compliance. It never mentioned licensees
who had already been inspected, nor did it imply that other types
of inspections would not be done or that previous violations
would be waived.
9. Further, WGUL-FM, Inc. argues that the "equal
treatment" requirement of Melody Music was violated because it
was treated differently than other licensees who were warned of
the upcoming EAS inspections. This is not the case. WGUL-FM,
Inc. was warned of the upcoming EAS inspections, just like all
other licensees. It, like all other licensees, was told that the
EAS inspections would not begin until February 1, 1999 and from
the date of the news release through February 1, 1999, WGUL-FM,
Inc. was not inspected. Thus, it was treated the same as all
other licensees. That it was inspected eight months before the
news release as a result of a complaint unrelated to EAS and EAS
violations were discovered means that WGUL-FM is not similarly
situated with licensees who had not been sanctioned for EAS
violations during an amnesty period taking place in the future.
For the "equal treatment" requirement of Melody Music to be
applicable, all relevant licensees have to be similarly situated.
WGUL-FM, Inc. is different than other licensees receiving the EAS
compliance warning because it had already been found to be in
violation of the EAS rules. It could not have relied, and did
not rely, on the subsequent public notice. Thus, Melody Music
does not require the portion of the forfeiture attributable to
the EAS violations to be rescinded.
10. Finally, WGUL-FM Inc.'s efforts to bring WINV(AM) into
compliance with various Commission rules prior to becoming
WINV(AM)'s licensee are not a basis for reducing the forfeiture
assessed for violations discovered after WGUL-FM, Inc. became the
11. ACCORDINGLY, IT IS ORDERED that, pursuant to Section
1.115(c) of the Rules, 47 C.F.R. § 1.115(c), WGUL-FM, Inc.'s
application for review of the Memorandum Opinion and Order for
NAL No. 815TP0004 IS GRANTED IN PART AND DENIED IN PART.
12. IT IS FURTHER ORDERED that, pursuant to Section 503(b)
of the Act, 47 U.S.C. § 503(b), and Section 1.80 of the Rules, 47
C.F.R. § 1.80, WGUL-FM, Inc. must pay the amount of five thousand
dollars ($5,000) within thirty (30) days of the release date of
this Order. Payment may be made by check or money order, drawn
on a U.S. financial institution, payable to the Federal
Communications Commission.16 The remittance should be marked
``NAL Acct. No. 815TP0004'' and mailed to the following address:
Federal Communications Commission
P.O. Box 73482
Chicago, Illinois 60673?7482
Forfeiture penalties not paid within 30 days will be referred to
the U.S. Attorney for recovery in a civil suit. 47 U.S.C. §
13. IT IS FURTHER ORDERED that a copy of this Order shall
be sent by certified mail, return?receipt requested, to WGUL-FM,
Inc. in care of its counsel of record, Koerner & Olender, P.C., 3
Bethesda Metro Center, Suite 640, Bethesda, MD 20814.
FEDERAL COMMUNICATIONS COMMISSION
Magalie Roman Salas
1 15 FCC Rcd 11,163 (Enf. Bur. 2000).
2 47 U.S.C. § 503(b).
3 47 C.F.R. § 1.80.
4 47 C.F.R. ' 11.52(d).
5 47 C.F.R. ' 11.61(a).
6 47 C.F.R. ' 73.3526(c).
7 47 C.F.R. ' 73.1590(a)(6).
8 14 FCC Rcd 6106 (Compl. & Inf. Bur. 1999).
9 News Release, FCC to Increase Enforcement of EAS
Regulations, Report No. CI 98-26, released November 30, 1998.
10 345 F.2d 730 (DC Cir. 1965).
11 At the time of the inspection, licensees were permitted
to have the main studio located at any accessible place within
the community of license. With the public inspection file rule
change, effective October 30, 1998, licensees are now required to
keep the public inspection file at the station's main studio.
If a broadcasting station fails to transmit broadcast
signals for any consecutive 12-month period, then the station
license granted for the operation of that broadcast station
expires at the end of that period, notwithstanding any provision,
term, or condition of the license to the contrary. 47 U.S.C. '
The assignment to WGUL-FM, Inc. was consummated on January
9, 1998, approximately two months before the inspection.
The applications for renewal and assignment, as well as
the application for change in city of license, were contested by
Dickerson Broadcasting, Inc., licensee of Station WEAG-FM,
Starke, Florida. Dickerson's application for review was
dismissed on December 14, 1998. See 14 FCC Rcd 2032 (1998).
15 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, at 17100-17101 (1997),
recon. denied, 13 FCC Rcd 303 (1999), released December 28, 1999
(factors for downward adjustments).
16 Payment of the forfeiture in installments may be
considered as a separate matter in accordance with Section 1.1914
of the Rules, 47 C.F.R. ' 1.1914. Requests for installment plans
should be mailed to: Chief, Credit and Debt Management Center,
445 Twelfth Street, S.W., Washington, D.C. 20554.