**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Broadcast Learning Center, Inc. ) File Number EB-02-PA-328

WHS405 ) NAL/Acct. No. 200332400004

Cherry Hill, New Jersey ) FRN: 0007-83-6190

)

)

## 

## FORFEITURE ORDER 

**Adopted: May 21, 2004 Released: May 25, 2004**

By the Chief, Enforcement Bureau:

**I.** **INTRODUCTION**

1.  In this *Forfeiture Order ("Order")*, we issue a monetary forfeiture
    in the amount of three thousand two hundred dollars (\$3,200) to
    Broadcast Learning Center, Inc. ("BLCI") for apparent willful and
    repeated violation of Section 74.532(e) of the Commission's Rules
    ("Rules")[^1] by operating station WHS405 at an unauthorized
    location.

2.  On January 6, 2003, the Commission's Philadelphia, Pennsylvania
    Office ("Philadelphia Office") issued a *Notice of Apparent
    Liability ("NAL")* to BLCI in the amount of four thousand dollars
    (\$4,000).[^2] BLCI filed a response on February 4, 2003 and
    supplemented its response on May 11, 2004.

**II.** **BACKGROUND**

3.  The license for station WHS405 authorizes BLCI to operate an aural
    broadcast auxiliary station on the frequencies 948.375 MHz and
    948.625 MHz near the intersection of 11^th^ Street and Moss Avenue,
    Hammonton, New Jersey. However, on October 15, 2002, an FCC agent
    with the Philadelphia Office inspected the station and found that
    BLCI was operating the station at an unauthorized location.
    Specifically, BLCI was operating the station at 308 Dutton Mill
    Road, Brookhaven, Pennsylvania, which is over 30 miles from the site
    authorized in the license.

4.  On October 21, 2002, the Philadelphia Office issued a Notice of
    Violation ("NOV") to BLCI for operating station WHS405 at an
    unauthorized location, in violation of Section 74.532(e) of the
    Rules. By letter dated October 30, 2002, BLCI submitted a response
    to the NOV. In the response, BLCI acknowledged to have operated
    station WHS405 at the unauthorized location since at least March
    17, 1998. BLCI stated that although it had filed an application with
    the Commission to relocate the station to 308 Dutton Mill Road,
    Brookhaven, Pennsylvania, it was unaware that the Commission
    returned the application on September 27, 1998. BLCI stated that on
    October 24, 2002, it filed another license modification application
    and an application for Special Temporary Authority. On January 6,
    2003, the Philadelphia Office issued a *NAL* for willful and
    repeated violation of Section 74.532(e) of the Commission's Rules.

5.  In its response to the *NAL,* BLCI acknowledges that it violated
    Section 74.532(e) but denies that its conduct was "willful,
    deliberate or intentional." It argues that the public was not harmed
    and that it promptly corrected the violation. BLCI also claims that
    it is financially unable to pay the forfeiture and that it has a
    history of compliance with Commission rules and regulations.

**III**. **DISCUSSION**

6.  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.*[^5] In
    examining BLCI'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.[^6]

7.  Section 74.532(e) of the Rules provides that each aural broadcast
    auxiliary station will be licensed at a specified transmitter
    location to communicate with a specified receiving location, and the
    direction of the main radiation lobe of the transmitting antenna
    will be a term of the station authorization. Based on the agent's
    inspection and BLCI's responses, it is undisputed that between March
    17, 1998 and October 15, 2002, BLCI operated aural broadcast
    auxiliary station WHS405 at an unauthorized location.

8.  BLCI concedes that it was operating station WHS405 from an
    unauthorized location, but argues that its misconduct was not
    "willful, deliberate or intentional" even though it also admits that
    its staff failed to study the primary station license "in detail to
    detect that the transmitter address was incorrect" and to learn that
    its application to relocate the station to the proper address was
    returned. These arguments are rejected because we find BLCI's
    failure to ascertain that it was not operating at its authorized
    location to be willful misconduct.[^7] Similarly, BLCI's argument
    that "no other station was harmed or interfered with" by its
    unintentional action and that the "public's safety was never put in
    risk or jeopardy" are also rejected. The absence of interference or
    any showing of harm to the public interest does not entitle BLCI to
    a reduction of the proposed forfeiture.[^8]

9.  BLCI points out that it has taken a number of corrective steps to
    cure the Rule violation. According to the company, after the
    violation was brought to its attention by the Commission, it
    immediately filed applications for license modification and Special
    Temporary Authority. BLCI states that these applications have been
    approved by the Commission, and that BLCI is now in "complete
    compliance." BLCI claims that it "spent more than \$3,000 in
    attorney and engineering fees to correct the violation and bring our
    station into FCC compliance." BLCI's remedial repair actions
    subsequent to notification of the violation do not warrant
    cancellation or reduction of the proposed forfeiture.[^9] 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]

10. BLCI submits federal income tax returns for years 2000, 2001, and
    2002 to demonstrate that payment of the monetary forfeiture will
    constitute a "financial burden on the station's operation".[^11] In
    further support of its inability to pay showing, BLCI also states
    that it is a "non commercial educational station with a good portion
    of our revenue coming from individual donations," lists other
    important financial obligations that it faces and discusses why it
    needs to set aside a cash reserve. However, the Commission has
    determined that, in general, a licensee\'s gross revenues are the
    best indicator of its ability to pay a forfeiture.[^12] After
    reviewing the financial data submitted, we find insufficient
    evidence in BLCI's response to support cancellation of the
    forfeiture or a reduction based upon inability to pay.

11. Finally, in support of its request for cancellation or reduction,
    BLCI states that it has a history of full compliance with FCC
    regulations. We have reviewed Commission records and concur.

12. Based on the findings of the *NAL* and BLCI's response thereto, we
    conclude that BLCI's violations of Section 74.532(e) of the Rules
    were willful and repeated.[^13] Considering the entire record and
    the factors listed above, we find that reduction of the proposed
    forfeiture is warranted because of the compliance record of BLCI
    with the Commission's Rules. Accordingly, the forfeiture amount is
    reduced from four thousand dollars (\$4,000) to three thousand two
    hundred dollars (\$3,200).

    **IV. ORDERING CLAUSES**

13. Accordingly, **IT IS ORDERED THAT**, pursuant to Section 503(b) of
    the Act[^14], and sections 0.111, 0.311 and 1.80(f)(4) of the
    Commission\'s Rules[^15], Broadcast Learning Center's Inc. **IS
    LIABLE FOR A MONETARY FORFEITURE** in the amount of three thousand,
    two hundred dollars (\$3,200) for its willful and repeated violation
    of Section 74.532(c) of the Rules.

14. Payment of the forfeiture shall be made in the manner provided for
    in Section 1.80 of the Commission's Rules[^16] 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.[^17]
    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. 200332400004, and FRN: 0007-83-6190
    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.[^18]

15. **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 Broadcast Learning Center, Inc., 1445 Skippack Pike, Blue
    Bell, Pennsylvania 19422 and to its counsel, Edward W. Hummers, Jr.,
    Holland & Knight LLP, 2099 Pennsylvania Avenue, N.W., Suite 100,
    Washington, D.C. 20006-6801.

FEDERAL COMMUNICATIONS COMMISSION

David H. Solomon

Chief, Enforcement Bureau

[^1]: ^?^ 47 C.F.R. § 74.532(c).

[^2]: *Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    200332400004 (Enf. Bur., Philadelphia Office, released January 6,
    2003).

[^3]: 47 U.S.C. § 503(b).

[^4]: 47 C.F.R. § 1.80.

[^5]: 12 FCC Rcd 17087 (1997), *recon. denied*, 15 FCC Rcd 303 (1999).

[^6]: 47 U.S.C. § 503(b)(2)(D)

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

[^8]: *See In re AGM-Nevada, LLC,* 18 FCC Rcd 1476 (Enf. Bur. 2003).

[^9]: *See* *Radio Station KGVL, Inc.,* 42 FCC 2d 258, 259 (1973).

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

[^11]: *See* *PJB Communications of Virginia, Inc.,* 7 FCC Rcd 2088
    (1992) (forfeiture not deemed excessive where it represented
    approximately 2.02 percent of the violator's gross revenues);
    *Hoosier Broadcasting Corporation*, 15 FCC Rcd 8640, 8641 (Enf. Bur.
    2002) (forfeiture not deemed excessive where it represented
    approximately 7.6 percent of the violator's gross revenues); *Afton
    Communications Corp.*, 7 FCC Rcd 6741 (Com. Car. Bur. 1992)
    (forfeiture not deemed excessive where it represented approximately
    3.9 percent of the violator's gross revenues).

[^12]: *See PJB Communications of Virginia, Inc. at* 2088, 2089.

[^13]: 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*, *id.* at 4387, 4388 (1991) and
    *Western Wireless Corporation*, 18 FCC Rcd 10319 at fn 56 (2003).

[^14]: 47 U.S.C. § 503(b).

[^15]: 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).

[^16]: 47 C.F.R. § 1.80.

[^17]: 47 U.S.C. § 504(a).

[^18]: *See* 47 C.F.R. § 1.1914.