*Pages 1--4 from Microsoft Word - 30522* Federal Communications Commission Before the Federal Communications Commission Washington, D. C. 20554 In the Matter of Radio Lake Placid, Inc. WIRD WLPW Lake Placid, New York ) ) ) ) ) ) ) ) File Number: EB- 02- BF- 178 EB- 02- BF- 179 NAL/ Acct. No. 200332280001 FRN: 0003 7652 52 NOTICE OF APPARENT LIABILITY FOR FORFEITURE Released: October 3, 2002 By the Resident Agent, Buffalo Office, Enforcement Bureau: I. INTRODUCTION 1. In this Notice of Apparent Liability for Forfeiture, we find that Radio Lake Placid, Inc., (“ RLP”), licensee of radio stations WIRD and WLPW, has apparently violated Section 11.35( a) of the Commission's Rules and Regulations (“ Rules”) 1 , by failing to have installed an operational Emergency Alert System (“ EAS”). We conclude that RLP is apparently liable for forfeiture in the amount of eight thousand dollars ($ 8,000). II. BACKGROUND 2. On July 2, 2002, Resident Agent Gene Stanbro from the Commission’s Buffalo Office inspected Radio Stations WIRD and WLPW in Lake Placid, New York. At the time of inspection WIRD and WLPW had no EAS equipment installed at the main studio. 3. On July 10, 2002, the Buffalo Office issued two Official Notices of Violation (“ NOV”) to RLP for violations found during the July 2, 2002, inspection. Agent Stanbro cited Radio Lake Placid for non- compliance with Section 11.35 of the Rules. 4. On July 16, 2002, the Buffalo Office received a response from RLP dated July 15, 2002. RLP acknowledged in its response that it had failed to comply with the Commission’s EAS requirements, and detailed corrective steps that it had taken to eliminate the violations (e. g., repair and reinstall the equipment). 1 47 C. F. R. § 11.35( a). 1 Federal Communications Commission 2 III. DISCUSSION 5. Section 11.35( a) of the Rules states that stations are responsible for ensuring that EAS encoders, EAS Decoders and Attention Signal generating and receiving equipment used as part of the EAS are installed so that the monitoring and transmitting functions are available during the times the stations are in operation. 6. Based on the evidence before us, we find that RLP willfully 2 and repeatedly 3 violated Section 11.35( a) of the rules by failing to have an operational EAS system. 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 at $8000 for failure to install and have operational EAS equipment. In assessing the monetary forfeiture amount, we must take into account the statutory factors set forth in Section 503( b)( 2)( D) of the Communications Act of 1934 (“ Act”), as amended, 5 which include the nature, circumstances, extent, and gravity of the violation, and with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay, and other such matters as justice may require. The record reveals that RLP does have an overall history of compliance. However, the violations are egregious. Applying the Forfeiture Policy Statement and the statutory factors to the instant case and applying the inflation adjustments, we believe that an eight thousand dollar ($ 8,000) monetary forfeiture is warranted. IV. ORDERING CLAUSES 7. 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 , Radio Lake Placid, Inc. is hereby NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the amount of eight thousand dollars ($ 8,000) for willful and repeated violation of Section 11.35( a) of the Commissions Rules. 8. 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, Radio Lake Placid, Inc., SHALL 2 Section 312( f)( 1) of the Act, 47 U. S. C. § 312( f)( 1), which applies to Section 503( b) of the Act, provide that “the 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.…” See Southern California Broadcasting Co., 6 FCC Rcd 4387 (1991). 3 Section 312( f)( 2), which also applies to Section 503( b), provides: [t] he term “repeated”, when used with reference to the commission or omission of any act, means the commission or omission of such act more than once or, if such commission or omission is continuous, for more than one day. 4 47 C. F. R. § 1.80( b)( 4). 5 47 U. S. C. § 503( b)( 2)( D). 6 47 U. S. C. § 503( b) 7 47 C. F. R. §§ 0.111, 0.311, and 1.80. 2 Federal Communications Commission 3 PAY the full amount of the proposed forfeiture or SHALL FILE a written statement seeking reduction or cancellation of the proposed forfeiture. 9. 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. 200332280001 and FRN: 0003 7652 52. 10. 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. 200332280001. 11. 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. 12. 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 13. 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 [relevant 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. 14. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT LIABILITY shall be sent by Certified Mail, Return Receipt Requested, to Radio Lake Placid, Inc., 17 Wilmington Road, Lake Placid New York 12946. FEDERAL COMMUNICATIONS COMMISSION 8 See 47 C. F. R. § 1.1914. 3 Federal Communications Commission 4 Gene J. Stanbro Resident Agent Buffalo, New York Office 4