**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | File No. EB-02-DV-313        |
|                                  | *) |                              |
| Woodland Communications          | ** | NAL/Acct. No. 200332800012   |
| Corporation                      |    |                              |
|                                  | *  | FRN No. 0002-3220-89         |
| Licensee of Station WMF732       | *) |                              |
|                                  | ** |                              |
| Montrose, Colorado               |    |                              |
|                                  | *  |                              |
| Facility ID \# 73626             | *) |                              |
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|                                  | *  |                              |
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+----------------------------------+----+------------------------------+

**FORFEITURE ORDER**

**Adopted: October 18, 2004 Released: October 20, 2004**

By the Assistant Chief, Enforcement Bureau:

# INTRODUCTION

1.  In this *Forfeiture Order* ("*Order*"), we issue a monetary
    forfeiture in the amount of eight thousand dollars (\$8,000) to
    Woodland Communications Corporation ("Woodland") for willful and
    repeated violations of Sections 74.551(a)(2), 74.551(a)(3), and
    74.561 of the Commission's Rules ("Rules").[^1] The noted violations
    involve Woodland's operation of radio transmitting equipment on an
    unauthorized frequency and from an unauthorized location.

2.  On April 30, 2003, the Commission's Denver, Colorado District Office
    ("Denver Office") issued a *Notice of Apparent Liability for
    Forfeiture* ("*NAL*") to Woodland for a forfeiture in the amount of
    eight thousand dollars (\$8,000).[^2] Woodland filed a response to
    the *NAL* on May 29, 2003.

# BACKGROUND

3.  On August 1, 2002, a Denver Office agent inspected broadcast
    stations KUBC (AM) and KKXK (FM) and determined that the STL
    transmitter used by KUBC-AM, call sign WMF732 was operating on an
    unauthorized frequency and from an unauthorized location. The Denver
    Office agent verified that the STL transmitter was operating on the
    frequency 948.873 MHz instead of on the authorized frequency of
    951.000 MHz. Further, the studio and the STL transmitter were
    located at 106 Rose Lane, Montrose Colorado instead of at the
    authorized location of 2018 South Townsend, Montrose, Colorado.

4.  On April 30, 2003, the Denver Office issued the subject *NAL* to
    Woodland for operating the STL transmitter on an unauthorized
    frequency and from an unauthorized location. The *NAL* found that
    Woodland did not promptly change the operating frequency to the
    authorized frequency, and that Woodland did not promptly file an
    application to change the transmitter location. Woodland filed a
    response to the *NAL* on May 29, 2003. In its response, Woodland
    disputed the claim that it did not take immediate action to come
    into compliance with the noted Rule violations. Woodland claimed
    that it was delayed by circumstances beyond its control, and that
    the *NAL* should be cancelled because Woodland took action to come
    into compliance. In the alternative, Woodland requested a reduction
    of the forfeiture amount because it imposes an economic burden on
    the licensee. Woodland enclosed its tax returns from 2001 to 2003 in
    support of its economic burden claim.

# 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"),[^3] Section 1.80 of the Rules,[^4] and *The
    Commission's Forfeiture Policy Statement and Amendment of Section
    1.80 of the Rules to Incorporate the Forfeiture Guidelines*, 12 FCC
    Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999) ("*Policy
    Statement*"). In examining Woodland'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.[^5]

6.  Section 74.551(a)(2) of the Rules requires prior Commission approval
    for a change in operating frequency or channel bandwidth.[^6] In its
    response, Woodland conceded that it did not file an application to
    change the operating frequency for the STL transmitter prior to the
    agent's inspection. Therefore, we find that Woodland willfully[^7]
    and repeatedly[^8] violated Section 74.551(a)(2) of the Rules.

7.  Section 74.561 of the Rules requires a licensee to maintain the
    operating frequency of the transmitter within 0.005% of the assigned
    frequency.[^9] According to the *NAL*, at the time of the inspection
    WMF732 was transmitting on 948.873 MHz, more than 0.22% from the
    assigned frequency of 951.000 MHz. In its response, Woodland did not
    dispute that it was operating on the incorrect frequency.
    Accordingly, we find that Woodland willfully and repeatedly violated
    Section 74.561 of the Rules.

8.  Section 74.551(a)(3) of the Rules requires prior Commission approval
    for a change in the location of the transmitter or transmitting
    antenna, unless relocation of the transmitter occurs within the same
    building.[^10] In its response, Woodland concedes that it did not
    seek Commission approval when it changed the location of the
    transmitter. Therefore, we find that Woodland willfully and
    repeatedly violated Section 74.551(a)(3) of the Rules.

9.  The *NAL* found that Woodland failed to come into compliance with
    the noted sections of the rules in a timely fashion. In response,
    Woodland claimed that it immediately ordered new equipment to
    operate on the authorized frequency and promptly filed an
    application to change the authorized site for WMF732, but was
    delayed by circumstances beyond its control. Woodland requested
    cancellation of the *NAL* based on its post investigation attempts
    to come into compliance. The Commission has been clear 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.\"[^11] Any effort made by Woodland
    to come into compliance, whether immediate or delayed by extenuating
    circumstances, does not negate its willful and repeated violations
    of the Rules. Therefore, we conclude that Woodland's effort to
    correct the violations after they were discovered by the Commission
    agent is not a mitigating factor and the forfeiture amount will not
    be cancelled or reduced on this basis.

10. Further, Woodland requested a reduction in the forfeiture amount
    because it imposes an economic hardship on the licensee. We will
    interpret this to be a claim of inability to pay. To assess a claim
    of inability to pay, the Commission reviews a claimant's gross
    revenues to determine if it is able to pay the assessed
    forfeiture.[^12] We reviewed the financial information submitted by
    Woodland and find that it does not provide a basis for cancellation
    or reduction. The forfeiture is a very small percentage of
    Woodland's gross revenues, and therefore does not warrant
    reduction.[^13]

    **IV. ORDERING CLAUSES**

11. Accordingly, **IT IS ORDERED** that, pursuant to Section 503(b) of
    the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of the Rules,[^14]
    Woodland Radio, Inc. **IS LIABLE FOR A MONETARY FORFEITURE** in the
    amount of eight thousand dollars (\$8,000) for its willful and
    repeated violation of Sections 74.551(a)(2), 74.551(a)(3), and
    74.561 of the Rules.

12. Payment of the forfeiture shall be made in the manner provided for
    in Section 1.80 of the Rules 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.[^15] Payment of the
    forfeiture must be made by check or similar instrument, payable to
    the order of the Federal Communications Commission. The payment must
    include the NAL/Acct. No. and FRN No. referenced above. Payment by
    check or money order may be mailed to Forfeiture Collection Section,
    Finance Branch, Federal Communications Commission, P.O. Box 73482,
    Chicago, Illinois 60673-7482. Payment by overnight mail may be sent
    to Bank One/LB 73482, 525 West Monroe, 8th Floor Mailroom, Chicago,
    IL 60661. Payment by wire transfer may be made to ABA Number
    071000013, receiving bank Bank One, and account number 1165259.
    Requests for full payment under an installment plan should be sent
    to: Chief, Revenue and Receivables Operations Group, 445 12th
    Street, S.W., Washington, D.C. 20554.[^16]

13. IT **IS FURTHER ORDERED** that a copy of this *Order* shall be sent
    via First Class Mail and Certified Mail, Return Receipt Requested,
    to Woodland Radio, Inc., 1275 First Avenue, No. 125, New York, New
    York, 10021.

FEDERAL COMMUNICATIONS COMMISSION

George R. Dillon

Assistant Chief, Enforcement Bureau

![](media/image1.wmf){width="6.944444444444445e-4in"
height="6.944444444444445e-4in"}

#  {#section .unnumbered}

[^1]: 47 C.F.R. § 74.103(c).

[^2]: *Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    200332800012 (Enf. Bur., Denver Office, released April 30, 2003).

[^3]: 47 U.S.C. § 503(b).

[^4]: 47 C.F.R. § 1.80.

[^5]: 47 U.S.C. § 503(b)(2)(D).

[^6]: 47 C.F.R. § 74.551(a)(2).

[^7]: 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
    ...." *Southern California Broadcasting Co.*, 6 FCC Rcd 4387 (1991).

[^8]: 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).

[^9]: 47 C.F.R. § 74.561

[^10]: 47 C.F.R. § 74.551(a)(3)

[^11]: *Seawest Yacht Brokers*, 9 FCC Rcd 6099, 6099 (1994)

[^12]: *See* *Forfeiture Policy Statement*, 12 FCC Rcd 17087, 17106- 07
    (1997), *recon. denied*, 15 FCC Rcd 303 (1999)

[^13]: *See* *Alpha Ambulance, Inc*., 19 FCC Rcd 2547, 2548 (2004),
    citing *PJB Communications*, 7 FCC Rcd 2088, 2089 (1992) (forfeiture
    not deemed excessive where it represented approximately 2.02 percent
    of the violator\'s gross revenues); *Local Long Distance, Inc*., 16
    FCC Rcd 10023, 10025 (2001) (forfeiture not deemed excessive where
    it represented approximately 7.9 percent of the violator\'s gross
    revenues). In this case, the \$8,000 proposed forfeiture constitutes
    less than 1 percent of Woodland's average gross revenues for
    2000-2002, which is a significantly lower percentage of gross
    revenues than in both *Alpha Ambulance*, and *Local Long Distance,
    Inc*.

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

[^15]: 47 U.S.C. § 504(a).

[^16]: *See* 47 C.F.R. § 1.1914.