**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Melodynamic Broadcasting Corporation ) File Number EB-02-DT-397

Radio Station WCER ) NAL/Acct. No. 200332360003

Canton, Ohio ) FRN: 0007-96-0818

)

## 

## FORFEITURE ORDER 

**Adopted: May 17, 2004 Released: May 19, 2004**

By the Chief, Enforcement Bureau:

**I.** **INTRODUCTION**

1.  In this *Forfeiture Order ("Order")*, we issue a monetary forfeiture
    in the amount of eleven thousand dollars (\$11,000) to Melodynamic
    Broadcasting Corporation ("Melodynamic"), the licensee of Radio
    Station WCER, Canton, Ohio for willful and repeated violation of
    Sections 1.89(b), 11.15, 73.51(d), 73.51(e)(2), 73.1225(d)(1),
    73.1350(c)(1), 73.1560(a)(1), 73.1745 and 73.1870(b)(3) of the
    Commission's Rules ("Rules").[^1] Respectively, the noted violations
    include failure to respond to Commission communications; failure to
    maintain a copy of the Emergency Alert System (EAS) handbook;
    failure to maintain a record of the dates of commencement and
    termination of power determination by the indirect method; failure
    to maintain a record of the efficiency factor *F* for each mode of
    operation; failure to make available the record of the most recent
    antenna impedance measurements; failure to monitor and establish
    monitoring procedures and schedules to determine compliance with
    operating power; failure to operate with power not in excess of 105%
    of the authorized power; failure to operate at times, or with modes
    or power, specified and made a part of the license; and failure to
    maintain a written designation of the chief operator.

**II. BACKGROUND**

2.  On April 6-7, 2000, agents from the Commission's Detroit District
    Office ("Detroit Office") monitored and made field strength
    measurements of WCER based on complaints that WCER was operating
    with power in excess of that authorized. On April 7, 2000, the
    agents conducted an inspection of WCER and found numerous violations
    of FCC Rules. On June 27, 2000, the Detroit Office issued a Notice
    of Violation ("NOV") to Melodynamic for eleven rule violations, and
    received a July 12, 2000 written response which did not adequately
    address all the violations. On August 27, 2000, the Detroit Office
    issued a Continuation of NOV to Melodynamic requesting additional
    information regarding eight of the eleven items in the NOV, but
    received no response. On October 30, 2000, the Detroit Office sent a
    Warning to Melodynamic for failure to respond to the Continuation of
    NOV, and again received no response.

3.  Following receipt of more complaints indicating that WCER was
    continuing to operate with power in excess of its authorization, on
    June 20-21, 2002, agents monitored and made field strength
    measurements of WCER and, on June 21, 2002, conducted an inspection
    of WCER. As a result, the agents found thirteen violations of FCC
    Rules. On July 18, 2002, the Detroit Office issued an NOV to
    Melodynamic for these thirteen Rule violations, but received no
    reply. On October 3, 2002, the Detroit Office issued a Warning to
    Melodynamic for failure to reply to the NOV dated July 18, 2002, but
    received no reply. The record reveals a history of non-compliance,
    including repeated violations from prior inspections and
    nonresponsiveness to Commission notices and warnings. Finally, on
    December 30, 2002, the Detroit Office released a *Notice of Apparent
    Liability for Forfeiture ("NAL")* to Melodynamic in the amount of
    eleven thousand dollars (\$11,000).[^2] Melodynamic filed two
    responses following the release of the *NAL.*

4.  In neither response does Melodynamic challenge or address the
    findings of the *NAL,* that it willfully and repeatedly violated
    Sections 1.89(b), 11.15, 73.51(d), 73.51(e)(2), 73.1225(d)(1),
    73.1350(c)(1), 73.1560(a)(1), 73.1745 and 73.1870(b)(3) of the
    Rules. Rather, the first response, dated January 2, 2003, discusses
    the serious illness of the station manager and generally mentions
    that he has "questions as to the amount of the non-compliance fine
    and the amount of revenue the stations are currently generating and
    expect to generate in the near future."[^3] The other letter,
    received by the Commission on January 24, 2003, mentions the station
    manager's physical problems, states that the station engineer does
    not work there full time and claims that the station is in the
    process of completing installation of another ground system and is
    addressing interference and transmitter problems.

    **III. DISCUSSION**

5.  The proposed forfeiture amount in this case was assessed in
    accordance with Section 503(b) of the Communications Act of 1934, as
    amended ("Act"),[^4] Section 1.80 of the Rules,[^5] and *The
    Commission's Forfeiture Policy Statement and Amendment of Section
    1.80 of the Rules to Incorporate the Forfeiture Guidelines.*[^6] In
    examining Melodynamic's response, 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 such other matters as justice may require.[^7]

6.  Based on the findings of the *NAL* and Melodynamic's response
    thereto, we find that Melodynamic's violations of Sections 1.89(b),
    11.15, 73.51(d), 73.51(e)(2), 73.1225(d)(1), 73.1350(c)(1),
    73.1560(a)(1), 73.1745 and 73.1870(b)(3) of the Rules were
    willful[^8] and repeated.[^9] We reject any suggestion that the
    licensee is entitled to mitigation based on general efforts underway
    at the station to address the noted violations. It is well
    established that "corrective action taken to come into compliance
    with Commission rules or policy" is expected, and does not nullify
    or mitigate any prior forfeitures or violations." [^10]

7.  Melodynamic was directed in Paragraph 17 of the *NAL* to submit
    financial documentation to "specifically identify the basis" for any
    requested reduction or cancellation of a forfeiture on the basis of
    inability to pay. The Commission has determined that, in general, a
    licensee\'s gross revenues are the best indicator of ability to pay
    a forfeiture[^11] and would not consider forfeiture cancellation or
    reduction without submission of three years of tax returns or
    similar financial data. To the extent that the licensee's January 2,
    2003 letter suggests that the payment of forfeiture would impose
    hardship, Melodynamic has failed to substantiate its request. There
    is no evidence before us that would support cancellation of the
    forfeiture or a reduction based upon inability to pay.

8.  As of the adoption date of this *Order,* Melodynamic has not
    provided evidence that it has complied with Sections 11.15,
    73.51(d), 73.51(e)(2), 73.1225(d)(1), 73.1350(c)(1), 73.1560(a)(1),
    73.1745 and 73.1870(b)(3) of the Rules. Based upon the licensee's
    history of non-compliance and repeated uncorrected violations from
    prior inspections, we will require, pursuant to Section 308(b) of
    the Act ,[^12] that Melodynamic report to the report to the
    Enforcement Bureau no more than thirty (30) days following the
    release of this *Order* whether it has come into compliance with
    Sections 11.15, 73.51(d), 73.51(e)(2), 73.1225(d)(1), 73.1350(c)(1),
    73.1560(a)(1), 73.1745 and 73.1870(b)(3) by maintaining a copy of
    the Emergency Alert System (EAS) handbook; maintaining a record of
    the dates of commencement and termination of power determination by
    the indirect method; maintaining a record of the efficiency factor
    *F* for each mode of operation; making available the record of the
    most recent antenna impedance measurements; monitoring and
    establishing monitoring procedures and schedules to determine
    compliance with operating power; operating with power not in excess
    of 105% of the authorized power; operating at times, or with modes
    or power, specified and made a part of the license; and maintaining
    a written designation of the chief operator. Melodynamic's report
    must be submitted in the form of an affidavit or declaration, under
    penalty of perjury, signed by an officer or director of the
    licensee. Melodynamic should note that its continued noncompliance
    could result in additional enforcement action.

####  IV. ORDERING CLAUSES

9.  Accordingly, **IT IS ORDERED THAT**, pursuant to Section 503(b) of
    the Act[^13], and Sections 0.111, 0.311 and 1.80(f)(4) of the
    Commission\'s Rules[^14], Melodynamic Broadcasting Corporation**, IS
    LIABLE FOR A MONETARY FORFEITURE** in the amount of eleven thousand
    dollars (\$11,000) for its willful and repeated violation of
    Sections 1.89(b), 11.15, 73.51(d), 73.51(e)(2), 73.1225(d)(1),
    73.1350(c)(1), 73.1560(a)(1), 73.1745 and 73.1870(b)(3) of the
    Rules.

10\. Payment of the forfeiture shall be made in the manner provided for
in Section 1.80 of the Commission's Rules[^15] within 30 days of the
release of this Order. If the forfeiture is not paid within the period
specified, the case may be referred to the Department of Justice for
collection pursuant to Section 504(a) of the Act.[^16] Payment may be
made by credit card through the Commission\'s Credit and Debt Management
Center at (202) 418-1995 or by mailing a check or similar instrument,
payable to the order of the Federal Communications Commission, to the
Federal Communications Commission, P.O. Box 73482, Chicago, Illinois
60673-7482. The payment should note the NAL/Acct. No. 200332360003,

and FRN: 0007-96-0818 referenced above. Requests for full payment under
an installment plan should be sent to: Chief, Credit and Debt Management
Center, 445 12th Street, S.W., Washington, D.C. 20554.[^17]

11\. **IT IS FURTHER ORDERED** that, pursuant to Section 308(b) of the
Act, Melodynamic must submit the report described in Paragraph 8 above,
no more than thirty (30) days following the release of this *Order*, to
the Federal Communications Commission, Spectrum Enforcement Division,
445 12^th^ Street, S.W., Room 4-A223, Washington, D.C. 20554, Attention:
Emmitt Carlton, Esq.

12\. **IT IS FURTHER ORDERED** that a copy of this Forfeiture Order
shall be sent by Certified Mail, Return Receipt Requested, and First
Class Mail to Melodynamic Broadcasting Corporation, 4537 22^nd^ Street
NW, Canton, Ohio 44708.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: 47 C.F.R. §§ 1.89 (b), 11.15, 73.51(d), 73.51(e)(2),
    73.1225(d)(1), 73.1350(c)(1), 73.1560(a)(1), 73.1745 and
    73.1870(b)(3).

[^2]: *Notice of Apparent Liability for Forfeiture,* NAL/Acct. No.
    200332360003 (Enf. Bur., Detroit Office, released December 30,
    2002).

[^3]: ^?^ This letter, written by the manager's wife, also apologizes
    for her husband's unsuccessful attempts to contact the Commission,
    apparently in response to the October 3, 2002 Warning.

[^4]: 47 U.S.C. § 503(b).

[^5]: 47 C.F.R. § 1.80.

[^6]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999).

[^7]: 47 U.S.C. § 503(b)(2)(D).

[^8]: Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which applies
    to violations for which forfeitures are assessed under Section
    503(b) of the Act, provides that "\[t\]he term 'willful,' ... 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
    ...." *See Southern California Broadcasting Co.*, 6 FCC Rcd 4387
    (1991).

[^9]: As provided by 47 U.S.C. § 312(f)(2), a continuous violation is
    "repeated" if it continues for more than one day. The *Conference
    Report* for Section 312(f)(2) indicates that Congress intended to
    apply this definition to Section 503 of the Act as well as Section
    312. *See* H.R. Rep. 97^th^ Cong. 2d Sess. 51 (1982). *See Southern
    California Broadcasting Company*, 6 FCC Rcd 4387, 4388 (1991) and
    *Western Wireless Corporation*, 18 FCC Rcd 10319 at fn 56 (2003).

[^10]: ^?^ *Seawest Yacht Brokers,* 9 FCC Rcd 6099, 6099 (1994).

[^11]: *See PJB Communications of Virginia, Inc*., 7 FCC Rcd 2088, 2089
    (1992).

[^12]: ^?^ 47 U.S.C. § 308(b).

[^13]: 47 U.S.C. § 503(b).

[^14]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^15]: 47 C.F.R. § 1.80.

[^16]: 47 U.S.C. § 504(a).

[^17]: *See* 47 C.F.R. § 1.1914.