**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

WRHC Broadcasting Corp. ) Control No. 9808327

) NAL/Acct. No. x32080008

Licensee of Station WRHC(AM) )

Coral Gables, Florida )

Facility ID #73945 )

## NOTICE OF APPARENT LIABILITY FOR FORFEITURE

**Adopted:** March 20, 2000 **Released:** March 21, 2000

By the Chief, Enforcement Bureau:

1.  In this Notice of Apparent Liability for Forfeiture (\"NAL\"), we
    find that WRHC Broadcasting Corp. ("WBC") has apparently violated
    Sections 73.1615, 73.1620 and 73.1745 of the Commission's rules.[^1]
    The apparent violations include operation of a directional AM
    station in accordance with a construction permit without first
    requesting and obtaining authority from the Commission, commencement
    of program tests prior to staff approval, and operation at variance
    from licensed facilities. The apparent violations also resulted in
    interference to another station. We conclude that WBC is apparently
    liable for a forfeiture in the amount of twenty-two thousand five
    hundred dollars (\$22,500). Moreover, as discussed below, it appears
    that WBC continues to operate its facility in violation of the
    Commission's rules. We hereby notify WBC that if these apparent
    violations do not terminate within 30 days from the release of this
    NAL, it may be necessary to institute further proceedings, which
    could result in revocation of the license for Station WRHC.

**BACKGROUND**

2.  Station WRHC is licensed to broadcast on 1550 kHz. The station's
    license authorizes directional operation during the day at 10 kW
    from a location adjacent to Biscayne Bay and at night at 500 watts
    from a location in Coral Gables. WBC also holds a construction
    permit. The permit authorizes construction on 1560 kHz with
    directional daytime facilities at 45 kW from a site located in
    Miami, which is co-located with co-owned Station WWFE. In addition,
    the permit authorizes construction of directional nighttime
    facilities at 4.4 kW from a location in Medley, Florida. The
    Commission last renewed WRHC's license on December 5, 1996.

3.  On July 7, 1998, Interstate Broadcasting Company, Inc.
    ("Interstate"),[^2] licensee of Station WQEW, New York, New
    York,[^3] complained that WRHC had been operated at variance from
    its license. Specifically, Interstate alleged that, beginning in
    October 1996, it had begun receiving reports of nighttime
    interference to WQEW from a Spanish language station. After
    verifying the reports, Interstate investigated further and
    determined that the source of interference was WRHC. According to
    Interstate's consulting engineers, WRHC was operating
    omnidirectionally at night from an unauthorized location with an
    estimated power of 5 kW. Interstate related that after contacting
    WBC the interference ceased. However, Interstate further related
    that nighttime interference resumed in late 1997 or early 1998 and
    that additional requests to WBC to stop broadcasting at night
    produced only brief suspensions of such operation.

4.  In responsive pleadings and subsequent correspondence, WBC admits
    that it had never operated from its licensed daytime site and that
    it had been evicted from its nighttime site in February 1996. WBC
    further acknowledges that it had begun operating WRHC from its
    construction permit site in the fall of 1996 on 1560 kHz both during
    the day and at night without Commission authorization, and that it
    inadvertently operated at night on several occasions without
    authorization. WBC also concedes that it had been operating Station
    WRHC since the end of December 1997 or the beginning of January 1998
    with a new transmitter set at 5 kW. Additional pleadings from
    Interstate reflect that, although WBC temporarily ceased
    broadcasting after local sunset beginning July 16, 1998, it
    continued to broadcast for periods of time before local sunrise and
    after local sunset between August 1998 and February 1999. By letter
    to the Commission dated March 8, 1999, WBC pledged not to operate at
    night until such time as it had express authority to do so.[^4]
    However, WBC has made no such pledge with respect to daytime
    operations, and its July 1999 license application (File No.
    BL-990707DC) was dismissed as patently defective by the Mass Media
    Bureau on August 5, 1999. WBC petitioned for reconsideration of that
    action, resubmitted the application, and contends that it supplied
    sufficient information to obtain program test authority. However,
    the Mass Media Bureau, by letter dated March 7, 2000, determined
    that the resubmitted application contained several serious
    discrepancies. Accordingly, the Mass Media Bureau informed WBC that
    further action on the application would be withheld to allow WBC to
    file a corrective amendment. The Mass Media Bureau further informed
    WBC that failure to supply the amendment would result in dismissal
    of its application. Although the Mass Media Bureau has not
    authorized program tests, as required in this situation, WBC admits
    that it has operated and continues to operate WRHC during the day.

**DISCUSSION**

5.  Section 73.1745 of the Commission's rules[^5] provides that no
    station shall operate at times or with modes of power other than
    those specified in the station's license. Section 73.1615(d) of the
    Commission's rules, 47 C.F.R. § 73.1615(d), provides that licensees
    of AM stations holding a construction permit which authorizes both a
    change in frequency and directional facilities must request and
    obtain authority from the Commission prior to using the facilities
    authorized by the permit. Finally, Section 73.1620(a)(4) of the
    Commission's rules, 47 C.F.R. § 73.1620(a)(4), provides that AM
    permittees with a directional antenna that have requested program
    test authority may not commence program test operations prior to the
    issuance of staff approval. The information available indicates that
    WBC has not operated Station WRHC in accordance with its license
    since at least the date of its last renewal. WBC acknowledges that
    it has not used its licensed daytime facilities since their
    destruction by Hurricane Andrew, and it appears that WBC has not
    used the licensed nighttime facilities since its eviction from that
    site. Nevertheless, and despite the absence of special temporary
    authorization ("STA")[^6] or any other authority, WBC has apparently
    broadcast on WHRC from its daytime construction permit site on 1560
    kHz from the beginning of the present license term to the present.
    Compounding matters, it appears that at various times up to February
    1999, WBC has operated WRHC at night at an unauthorized power, which
    has resulted in interference to WQEW. Finally, even when WBC sought
    program test authority, it did not wait for staff approval before
    operating with the facilities described in its license application,
    as required in these circumstances.

6.  Section 503(b) of the Communications Act of 1934, as amended (the
    "Act"), 47 U.S.C. § 503(b)(1),[^7] provides that any person who
    willfully or repeatedly fails to comply with the terms and
    conditions of his license or the Commission's rules shall be liable
    for a forfeiture penalty. In this context, the term "willful" means
    that the violator knew it was taking the action in question,
    irrespective of any intent to violate the Commission's rules,[^8]
    while "repeatedly" means more than once.[^9] Considering the
    information before us, it appears that WBC knew that it was
    operating WRHC at variance from its license; that, for years, WBC
    had not requested or received permission to operate with the
    facilities specified in its permit; and that, even when WBC had
    submitted such a request, it continued to operate the facilities
    despite the fact that it did not receive staff approval as required.
    It thus appears that its violations were not only willful but also
    were intentional. It further appears that each of the violations
    described occurred on more than one day; thus, they were repeated.

7\. In assessing a forfeiture, we take into account the statutory
factors set forth in Section 503(b)(2)(D) of the Act,[^10] 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 such other matters as justice may
require. The Commission's forfeiture guidelines currently establish base
amounts of \$7,000 for interference, \$4,000 for using an unauthorized
frequency, and \$4,000 for operation at an unauthorized location.[^11]
The guidelines include "upward adjustment criteria," such as intentional
violation and repeated or continuous violation. After considering the
information before us, we believe the base amounts, which total
\$15,000, should be adjusted upward by 50 percent to take into account
the licensee's apparently intentional and continuous violations. In this
regard, the licensee continued to operate from its daytime construction
permit site, both during the day and often at night, even after it had
been specifically put on notice (and then admitted) that its operations
were not authorized.

8\. Finally, we are concerned that WBC has continued to operate its
facility without appropriate authorization in apparent violation of our
rules. We hereby notify WBC that if its operation of Station WRHC
continues without a license, program test authority or STA,[^12] for
more than 30 days after release of this NAL, it may be necessary to
institute further proceedings pursuant to Section 312 of the Act.[^13]
Such proceedings could lead to issuance of an order revoking the license
for Station WRHC. In this regard, we emphasize that the mere pendency of
the application or the filing of a request for program test authority or
STA will not suffice to avoid further enforcement action. Rather, the
application or request for program test authority or STA must be granted
or WBC must terminate all unauthorized operation of Station WRHC.
Otherwise, WBC risks loss of the license for Station WRHC as well as
additional forfeiture penalties.

**ORDERING CLAUSES**

9\. Accordingly, IT IS ORDERED THAT, pursuant to Section 503(b) of the
Act,[^14] and Sections 0.111, 0.311 and 1.80 of the Commission\'s
rules,[^15] WRHC Broadcasting Corp. is hereby NOTIFIED of its APPARENT
LIABILITY FOR A FORFEITURE in the amount of twenty-two thousand five
hundred dollars (\$22,500) for violating the terms and conditions of its
license and the Commission\'s rules requiring operation within the
parameters set forth in the license, and requiring express permission
prior to a permittee's operation or commencement of program tests
involving directional AM facilities and/or a change in frequencies.

10\. IT IS FURTHER ORDERED THAT, pursuant to Section 1.80 of the
Commission\'s rules,[^16] within thirty days of this NOTICE OF APPARENT
LIABILITY, WRHC Broadcasting Corp. SHALL PAY the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking reduction
or cancellation of the proposed forfeiture.

11\. Payment of the forfeiture 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 Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box 73482,
Chicago, Illinois 60673-7482. The payment should note the NAL/Acct. No.
referenced above.

12\. The response, if any, must be mailed to the Federal Communications
Commission, Enforcement Bureau, Investigations and Hearings Division,
445 12^th^ Street, S.W., Washington, D.C. 20554 and MUST INCLUDE THE
NAL/Acct. No. referenced above.

13\. The Commission will not consider reducing or canceling a forfeiture
in response to a claim of inability to pay unless the respondent
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 respondent'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.

14\. Requests for payment of the full amount of this Notice of Apparent
Liability under an installment plan should be sent to: Chief, Credit and
Debt Management Center, 445 12th Street, S.W., Washington, D.C.
20554.[^17]

15\. IT IS FURTHER ORDERED THAT a copy of this NOTICE OF APPARENT
LIABILITY shall be sent by Certified Mail Return Receipt Requested to
WRHC Broadcasting Corp., in care of Lawrence M. Miller, Esq., Schwartz,
Woods & Miller, 1350 Connecticut Avenue, N.W., Suite 300, Washington,
D.C. 20036-1717.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: 47 C.F.R. §§ 73.1615, 73.1620 and 73.1745.

[^2]: On November 30, 1998, following Commission approval of a *pro
    forma* assignment, the licensee became The New York Times Electronic
    Media Company. For ease of reference, we will continue to refer to
    the licensee of Station WQEW as Interstate.

[^3]: WQEW is a Class A station operating on 1560 kHz at 50 kW. See
    Sections 73.21(a)(1) and 73.25(b) of the Commission's rules, 47
    C.F.R. §§ 73.21(a)(1) and 73.25(b).

[^4]: Apparently, WBC has honored this pledge inasmuch as Interstate has
    submitted no further complaints.

[^5]: 47 C.F.R. § 73.1745.

[^6]: *See* Section 73.1635 of the Commission's rules, 47 C.F.R. §
    73.1635. Although WBC asserts that it had STA to operate Station
    WRHC during the day from its nighttime site, Commission records
    reflect that the only STA accorded the station was given to WBC's
    predecessor and that it expired on November 30, 1992.

[^7]: 47 U.S.C. § 503(b)(1). *See also* Section 1.80(a)(1) and (2), 47
    C.F.R. § 1.80(a)(1) and (2).

[^8]: *See* [Jerry Szoka]{.underline}, 14 FCC Rcd 9857, 9865 (1999);
    [Southern California Broadcasting Co.]{.underline}, 6 FCC Rcd 4387
    (1991).

[^9]: *See* [Hale Broadcasting Corp.]{.underline}, 79 FCC 2d 169, 171
    (1980).

[^10]: 47 U.S.C. § 503(b)(2)(D).

[^11]: *See* [The Commission's Forfeiture Policy Statement and Amendment
    of Section 1.80 of the Rules to Incorporate the Forfeiture
    Guidelines]{.underline}, 12 FCC Rcd 17087 (1997), *recon. denied*,
    15 FCC Rcd 303 (1999).

[^12]: In this regard, we note that WBC has the option of requesting STA
    from the Mass Media Bureau's Audio Services Division pending action
    on its application.

[^13]: 47 U.S.C. § 312.

[^14]: 47 U.S.C. § 503(b).

[^15]: 47 C.F.R. §§ 0.111, 0.311, 1.80.

[^16]: 47 C.F.R. § 1.80.

[^17]: *See* 47 C.F.R. § 1.1914.