**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

) File No. EB-00-BS-106

Radio One Licenses, Inc. )

) NAL/Acct. No. 20013226001

Licensee of Station WBOT(FM) )

) FRN 0003-7390-34

Brockton, Massachusetts )

## 

## [MEMORANDUM OPINION AND ORDER]{.underline}

Adopted: January 28, 2002 Released: January 31, 2002

By the Chief, Enforcement Bureau:

**I. INTRODUCTION**

1\. In this *Memorandum Opinion and Order* (*\"Order\"*) we deny a
Petition for Reconsideration filed by Radio One Licenses, Inc. (\"Radio
One\"), licensee of WBOT(FM), of the *Forfeiture Order*[^1] issued by
the Enforcement Bureau ("Bureau") assessing a twenty-one thousand five
hundred dollar forfeiture (\$21,500) against Radio One for willful
violation of the following Sections of the Commission's Rules ("Rules"):
11.35(a) (failure to have operational Emergency Alert System ("EAS")
equipment); 73.1125(e)[^2] (failure to establish a local or toll-free
telephone number in the community of license); 73.1350(c)(1) (failure to
establish monitoring procedures to determine compliance with Section
73.1560 regarding operating power); 73.1800(a) (failure to maintain a
station log); and 73.3526(a)(2) (failure to maintain a public inspection
file).[^3]

**II. BACKGROUND**

2\. On March 14, 2000, the Commission's Boston, Massachusetts Field
Office ("Boston Office") conducted an inspection of radio station
WBOT(FM) in Brockton, Massachusetts, after it received information
indicating that WBOT may have been in violation of the main studio rule.
The inspection revealed ten different rule violations. On March 28,
2000, the District Director of the Boston Office issued a Notice of
Violation (\"NOV\") for the violations. On March 8, 2001, the District
Director of the Boston Office issued a *Notice of Apparent Liability*
*for Forfeiture* (*\"NAL\"*)[^4] in the amount of \$22,000 for the
aforementioned violations. After being granted an extension of time to
respond to the NAL, Radio One submitted its response to the Commission
on May 1, 2001. In its response, Radio One acknowledged, with
explanation, that all of the violations occurred except the public file
violation, which it disputed. Nevertheless, Radio One requested that all
of the forfeiture amounts be cancelled and/or reduced. On August 14,
2001, the Bureau issued a *Forfeiture Order* in which it upheld the
issuance of the *NAL* but reduced the forfeiture amount to \$21,500
because of Radio One\'s voluntary disclosure of its failure to establish
a local or toll-free telephone number in its community of license.

**III. DISCUSSION**

3\. On September 13, 2001, Radio One submitted a Petition for
Reconsideration of the *Forfeiture Order.* In its Petition for
Reconsideration, Radio One disputes that it violated Section
73.3526(a)(2) of the Rules and requests that the Bureau cancel the
portion of the forfeiture assessed it for not having a public inspection
file. Radio One does not dispute that it violated Sections 11.35(a),
73.1125(e), 73.1350(c)(1), and 73.1800(a). However, it requests that the
portion of the forfeiture assessed for violation of these rules be
cancelled or reduced for other reasons.

4\. Regarding the public inspection file, Radio One maintains that the
file has always been and remains at WBOT(FM)\'s main studio. Further,
Radio One states that, at the time of the inspection, the file was
readily available during normal business hours to anyone who inquired of
Radio One personnel at the main studio. Radio One sets forth no evidence
in support of this assertion. In explaining why it did not provide
evidence of a public inspection file to the investigating agent, Radio
One asserts that perhaps the investigating agent did not ask for the
public file at the main studio, since the agent initially perceived
there to be no main studio at all. Alternatively, Radio One contends
that maybe the investigating agent did not ask a Radio One employee for
the file because WBOT(FM) shares facilities with another radio station.

5\. As stated in our *Forfeiture Order*, the investigating agent asked
for the public inspection file twice, first at the main studio and again
at the transmitter site. It is true that the agent\'s initial perception
was that WBOT(FM) lacked a meaningful management and staff presence at
its studio. However, in response to the NOV, Radio One represented that
Jane Gilson was the staff person at WBOT(FM)\'s main studio and that she
remained in attendance during normal business hours. Ms. Gilson and
others were present at the main studio during the inspection of
WBOT(FM). The agent asked for the public file during that inspection.
The file was never made available to him. Furthermore, as stated in the
*Forfeiture Order,* the investigating agent asked WBOT(FM)\'s general
manager, Mr. Tom Calococci, if WBOT(FM) had a public inspection file
when they met at the transmitter site. Mr. Calococci responded, \"not
yet.\" Radio One does not dispute that Mr. Calococci told the
investigating agent that WBOT(FM) did not have a public inspection file
yet. Instead, Radio One argues that Mr. Calococci was at the transmitter
site when the agent asked for the file and maintains that the file would
have been provided if the agent had asked for it at the studio. We think
it is irrelevant that Mr. Calococci was at the transmitter site when the
agent asked him for the file. As the station manager, the person
responsible for day-to-day operation of the station, he should have
known whether or not the station had a public inspection file.[^5] In
any event, contrary to Radio One\'s speculative assertions, as noted in
the *Forfeiture Order*, the agent did ask for the file at the main
studio and it was not made available to him.

6.  Radio One also contends that the Bureau has not met its burden of
    proof to levy a forfeiture for the public inspection violation. The
    Commission has concluded that the burden of proof in forfeiture
    proceedings is that of a preponderance of the evidence. [^6] The
    record in this proceeding indicates that the agent asked for the
    file twice and that it was not made available to him. Radio One has
    presented no evidence that it had a public inspection file at the
    time of the inspection. Moreover, Radio One has not presented any
    evidence supporting its assertion that the agent did not ask for the
    public inspection file. Contrary to Radio One's assertion, the
    Bureau has met its burden of proof by a preponderance of the
    evidence, and we affirm the issuance of the forfeiture for violation
    of Section 73.3526(a)(2) of the Rules.

7\. In support of its contention that the Bureau should cancel or
rescind the forfeiture amounts attributable to the violation of Rule
Sections 11.35(a), 73.1125(e), 73.1350(c)(1), and 73.1800(a), Radio One
reasserts the arguments it made in its response to the *NAL* and raises
four new arguments*.* To the extent that Radio One is reiterating
arguments made previously, no new evidence has been presented to
persuade the Bureau to change its positions stated in the *Forfeiture
Order*. However, we will examine the four new arguments raised. First,
Radio One requests that the Bureau consider that WBOT(FM) was newly
acquired at the time of the inspection. We do not find the fact that
Radio One acquired WBOT(FM) five and one half months prior to the
inspection a mitigating factor. The Commission has repeatedly held that
it is the responsibility of a licensee to familiarize itself and comply
with the applicable statutes and Commission rules and policies,
regardless of the length of time in which it has been engaged in
broadcasting. *Bay Television, Inc.*, 10 FCC Rcd 11509 (1995) (rejecting
licensee's request for lenient treatment because it had been on the air
for barely six months). Moreover, Radio One is an experienced
broadcaster with over 20 years of experience. As an experienced
broadcaster, it should be well aware of its responsibility to comply
with the Commission's rules and policies.

8\. Second, Radio One asks us to consider "other compelling public
interest factors" in favor of eliminating, or substantially reducing the
forfeiture. However, Radio One does not specifically identify what
public interest factors it wants us to consider. Furthermore, we fully
considered all of the factors set forth in Section 503(b) of the
Communications Act of 1934, as amended, (\"Act\")[^7] in determining the
appropriate forfeiture amount in this case.

9\. Third, in support of its request for reduction, Radio One cites to
*WLDI, Inc.*[^8] and *WVGO License Limited Partnership*,[^9] two cases
in which forfeitures were reduced because the licensees exhibited an
overall history of compliance with the Commission\'s Rules. Here, Radio
One does not have a history of overall compliance with the Commission\'s
Rules. Contrary to Radio One\'s assertion that prior NOVs are not
relevant to its history of overall compliance, we have found that prior
NOVs are factors in determining a licensee\'s overall history of
compliance.[^10] Moreover, the Commission has considered the duration of
a violation in determining whether a licensee has a history of overall
compliance. [^11] In this case, there was a prior NOV issued on November
18, 1999 to Radio One for three violations at WBOT(FM) a month and a
half after it took ownership of the station. The March 14, 2000
inspection of WBOT(FM) revealed ten violations and resulted in a second
NOV issued approximately four months after the first on March 28, 2000.
Moreover, the EAS violation identified in the second NOV spanned a
period of almost four months, in spite of the fact that Radio One had
the EAS equipment on hand and uninstalled for at least two months of
that time. In light of the fact that Radio One had two NOVs issued to it
within a four-month period of time and considering the duration of the
EAS violation, we do not find that Radio One has a history of overall
compliance for its operation of this station and therefore we do not
find a reduction of the forfeiture to be appropriate.

10\. Finally, in further support of its request for reduction, Radio One
cites to *State University of New York (\"SUNY\"),*[^12] a case in which
the Commission reduced a forfeiture where the licensee had taken
remedial steps to correct violations, even though the licensee had been
the subject of a prior enforcement action. In *SUNY*, the Commission
reduced a \$23,750 forfeiture to \$4,200. The forfeiture had been
assessed because of *SUNY\'s* violation of 18 U.S.C.  1464, which
prohibits the broadcast of indecent material. The Commission generally
does not nullify or mitigate forfeitures because remedial measures were
taken to correct the violations.[^13] However, extenuating circumstances
in the *SUNY* case led the Commission to conclude that a reduction of
the forfeiture amount was warranted. Once *SUNY* became aware of the
possible broadcast of indecent material, it took WSUC(FM) off the air
pending an investigation, sent a letter of apology to the complainant,
adopted new operating procedures, and instituted criminal proceedings
against the employee responsible for the questionable broadcasts (for
reasons unrelated to the broadcasts).[^14] By comparison, there are no
such extenuating circumstances in this case as were present in the
*SUNY* case.

**IV. ORDERING CLAUSES**

11\. **ACCORDINGLY, IT IS ORDERED** that, pursuant to Section 405 of the
Act,[^15] and

Section 1.106 of the Rules,[^16] Radio One\'s Petition for
Reconsideration of the August 14, 2001, *Forfeiture Order* **IS DENIED**
and the *Forfeiture Order* **IS AFFIRMED**.

12\. Payment of the forfeiture shall be made in the manner provided for
in Section 1.80 of the Rules[^17] 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.[^18] Payment may be made 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. 200132260001 and FRN 0003-7390-34.
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.[^19]

13\. **IT IS FURTHER ORDERED** that, a copy of this *Order* shall be
sent by Certified Mail Return Receipt Requested to counsel for Radio One
Licenses, Inc., Davis Wright Tremaine LLP, Attention: Pamela C. Cooper,
Esq., 1500 K Street, NW, Washington, DC 20005.

**FEDERAL COMMUNICATIONS COMMISSION**

David H. Solomon

Chief, Enforcement Bureau

[^1]: ^?^ *Radio One Licenses, Inc.*, 16 FCC Rcd 15326 (Enf. Bur. 2001).

[^2]: ^?^ Effective May 20, 2000, Section 73.1125 of the Rules was
    amended and the subsections were, consequently, reordered. At the
    time the March 28, 2000 NOV was issued, the Rule and subsection that
    was violated was 73.1125(d). With the amendment to and restructuring
    of Section 73.1125, the subsection that was violated is now
    73.1125(e). For clarity, we will refer to this violation as a
    violation of Section 73.1125(e) of the Rules throughout this
    document.

[^3]: ^?^ 47 C.F.R. §§ 11.35(a), 73.1125(e), 73.1350(c)(1), 73.1560,
    73.1800(a), 73.3526(a)(2).

[^4]: ^?^ *Notice of Apparent Liability for Forfeiture*, NAL/Acct. No.
    200132260001 (Enf. Bur., Boston Office, released March 8, 2001).

[^5]: ^?^ In its response to the NOV, Radio One states that the public
    inspection file is available at Mr. Calococci's office.

[^6]: *See Metromedia, Inc., et. al*, 60 FCC 2d 1075 (1976).

[^7]: 47 U.S.C. § 503(b).

[^8]: 16 FCC Rcd 9571 (Enf. Bur. 2001).

[^9]: 12 FCC Rcd 5918 (MMB 1997).

[^10]: ^?^ *See Arnold Broadcasting Company*, 16 FCC Rcd 267 (Enf. Bur.
    2001), *recon. granted in part for other reasons, and denied in
    part*, 16 FCC Rcd 13600 (2001) and *Crown Communication, Inc.*, 15
    FCC Rcd 21937 (Enf. Bur. 2000) (both cases denying reduction of a
    forfeiture for history of overall compliance where the licensee had
    been issued multiple NOVs).

[^11]: ^?^ *See Commercial Radio Service Corp.*, 16 FCC Rcd 3543 (Enf.,
    Bur., Tech. & Pub. Safety Div. 2001) (denying a reduction for a
    history of overall compliance where the licensee had operated eleven
    specialized mobile radio stations without authorization over a five
    month period of time).

[^12]: ^?^ *State University of New York*, 13 FCC Rcd 23810 (1998).

[^13]: ^?^ *See Station KGVL, Inc.*, 42 FCC 2d 258, 259 (1973).

[^14]: ^?^ Additionally, notwithstanding a prior enforcement action,
    *SUNY* was determined to have an overall history of compliance.
    Based on the facts of this case, we have not found that Radio One
    has a history of overall compliance.

[^15]: 47 U.S.C. § 405.

[^16]: 47 C.F.R. § 1.106.

[^17]: 47 C.F.R. § 1.80.

[^18]: 47 U.S.C. § 504(a).

[^19]: *See* 47 C.F.R. § 1.1914.