In the Matter of WGUL-FM. Inc. Radio Station WINY Inverness, FL Adopted

Federal Communications Commission DA 99-588

Before the Federal Communications Commission Washington, D.C. 20554

) In the Matter of ) ) WGUL-FM. Inc. ) Radio Station WINY ) Inverness, FL ) NALJAcct. No. 815TP0004 )

FORFEITURE ORDER

Adopted: March 24, 1999 Released: March 26, 1999

By the Director, Legal Services Group Compliance and Information Bureau:

I . Before the Compliance and Information Bureau ("the Bureau") is a Notice of Apparent Liability ("NAL"), issued on June 1, 1998, to WGUL-FM, Inc., licensee of AM Station WINV, Inverness, Florida, and the July I, 1998, response thereto filed on behalf of WGUL-FM, Inc. by its counsel. The NAL proposed imposition of a forfeiture against WGUL-FM, Inc. in the amount of $10,000 pursuant to Section 503(b) of the Communications Act of 1934, as amended ("the Act"), 47 U.S.C. § 503(b), and Section 1.80 of the Commission's Rules ("the Rules"), 47 C.F.R. § l.80, for willful and continuous violation of Sections I l.52(d), 11.6 I (a), 73. I 590(a)(6), and 73.3526(d) of the Rules, 47 C.F.R. §§ I I .52(d), 11.61 (a), 73. I 590(a)(6), and 73.3526(d). For the reasons stated below, we reduce the monetary forfeiture to $7,000.

BACKGROUND

2. On March 25, 1998, agents from the Bureau's Tampa, Florida Field Office, responding to a complaint concerning parasitic emissions, inspected WINV's operating facilities. The inspection confirmed that WINV · s transmitter was radiating a signal on 1909 KHz at a level in excess of the maximum allowed hy Section 73.44(b) of the Rules, 47 C.F.R. § 73.44(b). In addition, the inspection revealed several other violations. including violations of Sections l I .52(d) (EAS code and attention signal monitoring requirements). 11.61 (a) (tests of EAS procedures), 73. I 590(a)(6) (equipment performance measurements), and 73.3526(d) (availability of public inspection file for public inspection) of the Rules.

3. On March 31, 1998, the Tampa Field 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 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.

4. On June I, 1998, the District Director of the Bureau's Tampa Field Office issued an NAL to WGUL-FM, Inc. in the amount of $10,000 for the willful and continuous violation of Sections I l.52(d), I i'.61(a). 73.1590(a)(6) and 73.3526(d) of the Rules.

DISCUSSION

5. A written response to the NAL was received by the Commission on July I. 1998. The response requests a remission or reduction of the forfeiture based on several grounds. First, the response states that the violation of the regularly required equipment performance measure~ents was inaccurately

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determined by the Commission's agents because the 14 month time limit allowed between the measurements had not expired at the time of the inspection. This assertion is supported by the fact that WGUL-FM. Inc. commenced operation of WINV pursuant to special temporary authority on February 7, 1997, a period of less than 14 months at the time of the March 28, 1998 inspection. Secondly. in response to the violation of the EAS monitoring requirements, WGUL-FM, Inc. admits that the station was not properly monitoring the two required sources, but claims that EAS monitoring was "being accomplished, and, at no time, was the public left at risk." Lastly, the response contends that the public inspection file while "admittedly not available at the time of inspection ... was normally available at the Citrus Hearing Center." Since the inspection, WGUL-FM, Inc. states that they have relocated the public inspection file to a more readily available location. In sum, with the exception of the equipment .performance measurements, WGUL-FM, Inc. does not deny that the violations occurred. However it requests that the past history of compliance and the relatively "minor" nature of the noted EAS and public inspection infractions should be taken into account. It also points out that, but for its "last minute rescue," WINV would not be on the air at all.

6. We have carefully evaluated the information submitted in response to the NAL. Based on the factual information provided, we accept WGUL-FM, Inc.'s assertion that the 14 month period for regularly required equipment measurements had not lapsed at the time of the inspection. We therefore find that WGUL-FM. Inc. had not violated Section 73.1590(a)(6) of the Rules at the time of the Tampa Field Office inspection. On the other hand. with respect to the requirements of Section I I .52(d) of the Rules, WGUL-FM, Inc. does not explain how WINV's EAS monitoring respom;ibilities were being accomplished, nor did it offer any factual basis to support this assertion. Additionally, the response fails to address the Section 11.6 i (a) of the Rules violation of the EAS testing procedures altogether. WGUL FM, Inc.'s assertion that the public inspection file is usually available at another location does not alter the fact that the public inspection file was not available, at the time of the inspection, or to any member of the public who wished to review it. Section 73.3526(d) of the Rules requires that a licensee make the station's public inspection file available to a member of the public to peruse on request at any time during re!' , 1:1r business hours. 47 C.F.R. § 73.3526(d). Indeed, the FCC has made it clear that it "considers pr:,. .. r maintenance of a station's public inspection file an important obligation of a broadcast licensee." Jn re license Renewal Applications of Certain Commercial Radio Stations Serving Philadelphia. Pennsylvania, 8 FCC Red 6400, 6404 (Aud. Serv. Div. 1993). Clearly, WGUL-FM Inc.'s assertion that the EAS and public inspection file violations are "minor" is incorrect. Furthermore. it is clear that each of these violations were willful under the Act because they were not caused by accident or mistake.'

7. The Bureau's Tampa Field Office issued the forfeiture pursuant to Section 503 of the Act and Section 1.80 of the Rules. In assessing the forfeiture amount. the Tampa Field Office followed the forfeiture standards established in Section 503 of the Act and The Commission's Forfeiture Policy Statemelll and Amendmelll of Section 1.80 of the Rules to Incorporate Guidelines. 12 FCC Red 17087 ( 1997). recon. pending ("Policy Statement"). Although the base amount for the noted violations was $20,000 using these guidelines, the NAL was issued for $10,000. Section 503(b) of the Act requires that the Commission 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 other such matters as justice may require. 47 U.S.C. §503(b){2)(0). Applying the Policy Statement and statutory factors to the instant case, as well as the factors examined above, we reduce the forfeiture amount to $7,000.

1 Section 3 I 2(t)( I) of the Act, 47 U.S.C. § 3 I 2(t)( I). which also applies to Section 503(b), provides: "[t)he term "willful.· when used with reference to the commission or omission of any act, means the conscious and deliberate commission or omission of such act, irrespective of any intent to violate any provision of this Act or any rule or regulation of the Commission authorized by this Act or by a treaty ratified by the United States." See Southern California Broadcasting Co .• 6 FCC Red 4387 (1991).

6107 Federal Communications Commission DA 99-588

8. ACCORDINGLY, IT IS 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. IS LIABLE FOR A MONETARY FORFEITURE in the amount of $7,000 for willful and continuous violation of Sections ll.52(d), ll.61(a}, 73.1590(a)(6}, and 73.3526(d) of the Rules, 47 C.F.R. §§ 11.52(d}, ll.61(a), 73.1590(a)(6), and 73.3526(d).

9. IT IS FURTHER ORDERED that, pursuant to Section I .80(f) of the Rules, 47 C.F.R. §I .80(f), WGUL-FM, Inc. shall, within thirty (30) days of the release of this Forfeiture Order, pay the amount of $7,000. Forfeitures shall be paid in U.S. dollars by check or money order drawn on a U.S. financial institution made paya_ble to the Federal Communications Commission. Payment may also be made by credit card with the appropriate documentation.2 The remittance should be marked NAUAcct. No. 8 I 5TP0004; and mailed to the following address:

Federal Communications Commission Post Office Box 73482 Chicago, IL 60673-7482

Petitions for reconsideration pursuant to Section 1.106 of the Rules, 47 C.F.R. § 1.106, or applications for review pursuant to Section 1.115 of the Rules, 47 C.F.R. § 1.115, should be sent to:

Office of the Secretary Federal Communications Commission 445 12th Street, S.W. Washington, D.C. 20554 ATIN: Mail Stop 1500E3-DLH Compliance and Information Bureau

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. § 504(a) ..

I 0. IT IS FURTHER ORDERED that a copy of this Order shall be sent certified mail, return receipt requested, to WGUL-FM, Inc. at 35048 U.S. 19 North, Palm Harbor, FL 34684, and their attorney.

FEDERAL COMMUNICATIONS COMMISSION

~(1u.Jo~~L..Ricarao M. Durham - - -·-\.. Director, Legal Services Group Compliance Division Compliance and Information Bureau

Requests for payment under installment plans should be mailed to: Chief, Billings and Collections. Mail Stop Ii IOA2. 445 12th Street, S.W .• Washington, D.C. 20554. 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. Contact Chief, Billings and Collections at (202) 418-1995 for more information on payments by credit card.

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