*Pages 1--4 from Microsoft Word - 30523* Federal Communications Commission Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of Arrow Communications of N. Y. Inc Radio Stations WPIG( FM) & WHDL( AM) Williamsport, PA. ) ) ) ) ) ) ) File Number: EB- 02- BF- 181 NAL/ Acct. No. 200332280002 FRN: 0001- 8382- 00 NOTICE OF APPARENT LIABILITY FOR FORFEITURE Released: November 7, 2002 By the Resident Agent, Buffalo Office, Enforcement Bureau: I. INTRODUCTION 1. In this Notice of Apparent Liability for Forfeiture (“ NAL”), we find that Arrow Communications of N. Y. Inc. (“ Arrow”), licensee of radio stations WPIG( FM) and WHDL( AM) Olean, New York apparently violated Section 11.35( a) 1 of the Commission’s Rules (“ Rules”) by failing to have operational Emergency Alert System (“ EAS”) equipment available so that the transmitting and monitoring functions are available during times that the station is in operation. We conclude that Arrow Communications of N. Y. Inc. is apparently liable for a forfeiture in the amount of eight thousand dollars ($ 8,000). II. BACKGROUND 2. On July 10, 2002, an agent from the Commission’s Buffalo Office conducted an inspection of the EAS system at radio stations WPIG( FM) and WHDL( AM) in Olean, New York. The station studios were co- located and were using the same EAS system. When the agent placed the EAS decoder in the monitor mode, the signal from one of the assigned stations was very noisy. The signal from the second assigned station was not present. The signal from the National Weather Service could be heard. A check of the station logs from June 2, 2002 through July 9, 2002 indicated no EAS tests or notifications received from either of the assigned stations. There were no entries in the station log indicating the failure to receive the required EAS tests or notifications. There were no entries in the station log indicating the designated chief operator had reviewed them. 3. On July 11, 2002, the Buffalo Office issued a Notice of Violation (“ NOV”) to Arrow citing 1 47 C. F. R. § 11.35( a). 1 Federal Communications Commission 2 Sections 11.35( a), failure to have an operational EAS system, and 73.1870( c)( 3) 2 , failure to have the designated chief operator review the logs. On July 23, 2002, Arrow submitted a written reply stating that an audio ground wire inside the EAS equipment had come loose, and that they had corrected the problem. Arrow also stated it has instructed its staff to log tests whenever they are received and reminded the chief operator to review the station logs III. DISCUSSION 4. Section 11.35( a) of the rules requires broadcast stations to install EAS Decoders and Attention Signal generating and receiving equipment used as part of the EAS so that the monitoring and transmitting functions are available during the times the station and system are in operation. At the time of inspection, the EAS monitor was not able to receive either of the assigned stations. The station logs indicated that no EAS tests or notifications were received from these stations from at least June 2, 2002 through July 9, 2002. Section 11.35( a) of the rules also requires broadcast stations determine the cause of any failure to receive required tests or notifications. There were no entries in the station log indicating the cause of failure to receive the required tests or notifications. 5. Based on the evidence before us, we find that on July 10, 2002, Arrow Communications of N. Y. Inc. willfully 3 violated Section 11.35( a) of the Rules by failing to have operational EAS equipment, and failure to determine the cause of failure to receive required EAS tests or notifications. The Commission’s Forfeiture Policy Statement and Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087, 17113 (1997), recon. denied, 15 FCC Rcd 303( 1999) (“ Forfeiture Policy Statement”) 4 , sets the base forfeiture amount for failure to have operational EAS equipment installed at $8000. In assessing the monetary forfeiture amount, we must take into account the statutory factors set forth in Section 503( b)( 2)( D) of the Communications Act of 1934, as amended, (“ Act”), 5 which include the nature, circumstances, extent, and gravity of the violation, and with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay, and other such matters as justice may require. The record reveals that Arrow Communications of N. Y. Inc. does have an overall history of compliance. Applying the Forfeiture Policy Statement and the statutory factors to the instant case and applying the inflation adjustments, we believe that a eight thousand dollar ($ 8,000) monetary forfeiture is warranted IV. ORDERING CLAUSES 2 47 C. F. R. § 73.1870( c)( 3). 3 Section 312( f)( 1) of the Act, 47 U. S. C. § 312( f)( 1), which applies to Section 503( b) of the Act, provides that “[ t] he term “willful”, when used with reference to commission or omission of any act, means that conscious and deliberate commission or omission of such act, irrespective of any intent to violate any provision of this Act…” See Southern California Broadcasting Co., 6 FCC Red 4387 (1991) 4 47 C. F. R. § 1.80. 5 47 U. S. C. § 503( b)( 2)( D). 2 Federal Communications Commission 3 6. Accordingly, IT IS ORDERED THAT, pursuant to Section 503( b) of the Act, 6 and Sections 0.111, 0.311 and 1.80 of the Rules, 7 Arrow Communications of N. Y. Inc. is hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the amount of eight thousand dollars ($ 8,000) for violating Section 11.35( a) of the Rules. 7. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the Rules, within thirty days of the release date of this NOTICE OF APPARENT LIABILITY, Arrow Communications of N. Y. Inc.. SHALL PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. 8. Payment of the forfeiture may be made 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. 200332280002, and FRN 0006- 1324- 19. 9. The response, if any, must be mailed to Federal Communications Commission, Office of the Secretary, 445 12 th Street, SW, Washington, DC 20554, Attn: Enforcement Bureau- Technical & Public Safety Division, and MUST INCLUDE THE NAL/ Acct. No. 200332280002. 10. The Commission will not consider reducing or canceling a forfeiture in response to a claim of inability to pay unless the petitioner 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 petitioner’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. 11. Requests for payment of the full amount of this Notice of Apparent Liability under an installment plan should be sent to: Federal Communications Commission, Chief, Revenue and Receivables Operations Group, 445 12th Street, S. W., Washington, D. C. 20554. 8 12. Under the Small Business Paperwork Relief Act of 2002, Pub L. No. 107- 198, 116 Stat. 729 (June 28, 2002), the FCC is engaged in a two- year tracking process regarding the size of entities involved in forfeitures. If you qualify as a small entity and if you wish to be treated as a small entity for tracking purposes, please so certify to us within thirty (30) days of this NAL, either in your response to the NAL or in a separate filing to be sent to the Technical and Public Safety Division. Your certification should indicate whether you, including your parent entity and its subsidiaries, meet one of the definitions set forth in the list provided by the FCC’s Office of Communications Business Opportunities (OCBO) set forth in Attachment A of this Notice of Apparent Liability. This information will be used for tracking purposes only. Your response or failure to respond to this question will have no effect on your rights and responsibilities pursuant to Section 503( b) of the Communications Act. If you have questions regarding any of the information contained in Attachment A, please contact OCBO at (202) 418- 0990. 6 47 U. S. C. § 503( b). 7 47 C. F. R. §§ 0.111, and 0.311. 8 See 47 C. F. R. § 1.1914. 3 Federal Communications Commission 4 13. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT LIABILITY shall be sent by Certified Mail Return Receipt Requested to Arrow Communications of N. Y. Inc., 1685 Four Mile Drive, Williamsport, Pennsylvania 17701. FEDERAL COMMUNICATIONS COMMISSION David A. Viglione Resident Agent Buffalo Office 4